On the back of deteriorating relations between President Uhuru Kenyatta and his deputy William Ruto, the DP’s allies have stressed the urgency to enact a Bill seeking to discourage arbitrary arrests and detentions.
The Bill was informed by the arrest of perceived government critics on Fridays, with the intention to have them spend three nights in custody until Monday, when the courts next sat, a trend popularised as Kamata Kamata Fridays.
However, recent fears Dr Ruto’s allies could be targeted with arbitrary arrests by the State — as the power struggle between the DP and his boss escalates to dangerous levels — have informed the urgency to enact the Criminal Procedure Code (Amendment) Bill, 2020.
Sponsored by Belgut MP Nelson Koech, an ally of the DP, the Bill seeks to amend the Criminal Procedure Code to compel an officer in charge of a police station to release on mandatory bond a person arrested without a warrant and who cannot be presented to court within 24 hours.
By making it illegal to detain such a person accused of an offence other than murder, treason, robbery with violence and attempted robbery with violence, the Bill essentially discourages the indefinite detention of government critics who may be arrested on accusations of other offences.
The Bill seeks to amend section 36 of the Criminal Procedure Code to provide for mandatory execution of bond for such persons arrested without a warrant.
At the moment, it is left to the discretion of the officer in charge of a police station to issue bond but the proponents of the Bill argue this discretion is subject to abuse.
“When a person has been taken into custody without a warrant for an offence other than murder, treason, robbery with violence and attempted robbery with violence, the officer in charge of the police station to which the person has been brought shall in any case, if it does not appear practicable to bring that person before an appropriate subordinate court within 24 hours after the person has been taken into custody, inquire into the case, and release the person on his executing a bond, to appear before a subordinate court at a time and place to be named in the bond,” reads the Bill.
It was published in November and is due to be introduced in the National Assembly. Mr Koech said he is confident the House Business Committee (HBC) chaired by Speaker Justin Muturi will prioritise the Bill and speed up its introduction in the House.
The push for the law change comes at a time the relationship between the two top leaders has deteriorated to its worst levels after the President asked Dr Ruto to resign from his post as DP if he was unhappy with the way the Jubilee government is being run.
The DP has answered the president saying he is going nowhere.
Dr Ruto has also infuriated the president for his hustler campaign slogan and his attacks on the Building Bridges Initiative’s proposed constitutional changes that the Head of State is pushing together with ODM leader Raila Odinga.
On Sunday, Mr Koech said the Tangatanga camp fears that the crackdown against them could worsen in coming days as a form of intimidation for their political stand.
“That is what informed the amendment,” Mr Koech explained. “Politicians and leaders allied to the deputy president have been the greatest victims of this Kamata Kamata Fridays just because of their political persuasion,” Mr Koech said.
But he insisted the law has become important for posterity because of the conduct by the police in recent times and to curb against abuse of State power to suppress critics.
The Friday arrests, common in 2018 and 2019, have been condemned with anti-establishment figures arguing the detentions are a tool to intimidate those with divergent opinion and not about fighting corruption
If the Bill is passed, and assented to by the President, Mr Koech said the law will also come in handy for ordinary Kenyans who are routinely arrested for petty offences on Fridays and end up spending the weekend in police custody just because they have no money to either bail themselves out or bribe police officers.
24 hours limit
The law requires the police should hold suspects not more than 24 hours before they are arraigned in court.
However, the police have exploited the loophole in the Constitution through the practise of arresting high profile individuals accused of graft on Fridays with the intent to detain them for at least 72 hours before they are arraigned on Monday.
Some argue the harassment is also abuse by investigators and prosecutors who want to play to the gallery smug in the knowledge that their cases are weak as they do not have sufficient evidence.
The DP and his allies have in the past criticised the practice arguing that it amounts to the overthrow of Article 29(a) of the Constitution, which expressly prohibits arbitrary deprivation of freedom without a just cause.
“The right to freedom is so fundamental that its deprivation should only be informed by concrete evidence, ready for presentation to a court of law,” Nandi Senator Samson Cherargei said.
Mr Cherargei said the police have exploited a loophole under Article 49(f)(2) of the Constitution which allows them to hold a person for over 24 hours.
‘Height of impunity’
“By waiting for Fridays, they are making it so obvious. Kamata Kamata Fridays, as is known is the height of impunity,” Mr Cherargey said, adding that even after the 72-hour detention, the State has always sought further detention to finish investigations.
But National Assembly Minority Leader Junet Mohamed also said he will support the Bill should it be introduced in the House arguing that police should only effect arrests when they are ready to prosecute.
Mr Mohamed, who has been a victim before, when he was arrested in 2016 alongside five other colleagues, the group was nicknamed the Pangani Six, said holding people in cells through the weekend was like subjecting them to serve jail terms even before they are charged.
“Once a decision for arrest is made, it is only proper that summons should be issued for the suspect to appear in court. After all, once you are convicted you will have to serve your jail term,” Mr Mohamed said.
In 2016, then MPs Mr Mohammed, Johnson Muthama, Moses Kuria, Ferdinand Waititu, Timothy Bosire, and Kimani Ngunjiri were held at Pangani Police Station over hate speech charges.
They were subsequently acquitted for the charges.
Other victims of Friday arrests include former Nairobi governors Mike Sonko and Evans Kidero.
Before his ouster, then Kiambu governor Ferdinand Waititu was also at one time to be arrested but got wind and escaped, only to surrender to the Ethics and Anti-Corruption Commission on a Sunday. He was hauled to court on a Monday. Mr Waititu later lost his governor’s post following his impeachment. He has blamed his tribulations on his support for the DP. Lately, he is attending presidential events in what seems to be his attempt to warm his way into the corridors of power.
Others who have been detained on Fridays are Kakamega Senator Cleopha Malala and Nakuru Town MP David Gikaria.
72 hours in police cells
All were arrested on various charges ranging from corruption to engaging in political violence and had to spend more than 72 hours in police cells before they were charged.
The constitution provides that a suspect should be brought before a court as soon as reasonably possible which is within 24 hours of their arrest.
If the arrest is outside normal court hours, as is the case with Friday arrests, the suspects should be brought to court by the end of the next court day.
The proposed law comes at a time the National Assembly committee on National Security is finalising a Bill with proposals to criminalise the class classification that is being propagated by the DP and his allies through their ‘Hustler Nation’ narrative.
High Court Judge George Odunga has also criticised the practice warning that it has the potential to take the country back to the old dark days when people were arrested on a whim without sufficient justification.
He argued that the practice chipped away the democratic gains that the country had made since the promulgation of the 2010 constitution.
“The practice would in effect take the country back to the dark days when suspects faced frivolous capital charges aimed at unlawfully incarcerating them with a view to achieving extraneous objectives, thereby unjustifiably denying them of their liberty. The attempt to claw back at non-existent powers ought to be restricted at all costs by the courts which are the temples of justice in this country," stated the judge.