What does "due process" mean, really? We have always understood it as the protection of he rights of the individual when he or she is undergoing an administrative or legal process, quite often a criminal process. Issa Timamy was accused of being part of the conspiracy that led to the violent murders at Mpeketoni in Lamu. He was arrested. He was arraigned in court in Mombasa. He applied to be released on bail. The Director of Public Prosecutions asked the court to deny him bail because "investigations were still on-going." The court granted him bail. Now the court has ordered that Mr Timamy be set free, that no charges be preferred against him, and that his five-million shilling bail be paid back to him.
Mr Timamy is the Governor of Lamu. President Kenyatta, even while the fires were still smouldering in Mpeketoni, accused "local political networks" of being culpable in the Mpeketoni attacks. Mr Timamy is a member of the Amani Alliance, which has had a falling out with the Jubilee Alliance. Is Mr Timamy a member of the "local political networks" that the President alluded to and are his arrest and prosecution the Inspector-general's and the DPP's response to the President's accusation?
Mr Timamy arrest and prosecution echoes the charging of the President at the International Criminal Court before sufficient evidence had been obtained, analysed and relied on to file charges. Mr Kenyatta is likely to escape the clutches of the ICC because of the shambolic manner that his case was handled. In his case, the Office of the Prosecutor did not follow due process in his zeal to bring someone, anyone, to book for the post-election violence in Kenya. It is understandable that a foreign court would get it wrong when it came to dealing with a powerful Kenyan. That is not an excuse that will satisfy Kenyans.
When Mr Timamy was arrested it was more than a week after the fires had been put out in Mpeketoni. In that time the President, he Interior cabinet secretary, the Inspector-General and the DPP had given assurances and undertakings that no stone would be left unturned in the investigation and prosecution of those behind the attacks. Under the current constitutional dispensation, due process should have guided all these characters on what could and what could not be done. the days of arresting someone, asking the courts to deny them bail and then complete the investigations are long done. They were a mockery on due process. They were the foundation for the torture chambers of Nyayo House and Nyati House, and they were the justification for the extra-legal execution of Mungiki leaders and their followers. If they dd not have the proof to successfully ensure Mr Timamy's trial and conviction, they should not have arrested him only to have the courts set him free later.
It is not enough for the main players in the administration of justice machinery to declare that they will respect due process without doing much to change the culture of riding roughshod over everyone that has defined that sector for three generations. Mr Timamy may very well have been involved, but the crude insertion of political considerations in the investigations demolished whatever chance for credible investigations there might have been. The people's confidence in the courts, the forces of law and order and the National Executive is a an all time low and the contemptuous treatment of constitutional principles by all three is doing nothing ton restore that confidence. If a Governor of an important county can be treated with that degree of official and prosecutorial contempt, what of the working masses, the poor, the weak and the semi-literate that the State is determined to leave by the wayside of the road to Vision 2030 glories?