Thursday, July 20, 2023

How committed are we?

An arrested person has the right to be brought before a court as soon as reasonably possible, but not later than twenty-four hours after being arrested; or if the twenty-four hours ends outside ordinary court hours, or on a day that is not an ordinary court day, the end of the next court day. [Art. 49(1)(f)]

Together with Article 50(2)(a) on the presumption of innocence of accused persons, these are the principles that we demand for friend, foe and all people in-between. Hon. Babu Owino, MP, is an odious species of Kenyan and it has been the wish of thousands of Kenyans to see the back of him from public office and if it took a conviction for his casual recklessness with his licensed firearm, that would just be fine. But his recent arrest and detention, presumably, by members of the National Police Service, the concealment of his place of detention, and the failure to arraign him before a magistrate within twenty-four hours are the reason why the Bill of Rights, particularly Articles 49 and 50, exist.

The vast majority of Kenyans have no need to rely on the protections of Article 49 or 50; but whenever those protections are undermined, regardless of the reason, all Kenyans are endangered. Mr. Owino's arrest and detention, it is speculated, are connected to his central role in mobilising disaffected constituents of Embakasi East Constituency to demonstrate against the elected government of Dr. William Ruto and Right Gachagua over the cost of living crisis. Jacaranda Grounds falls within Embakasi East Constituency and it is presumed that the Kenyans who are motivated to attend incendiary political rallies at that venue do so due, in part, to the efforts of Mr. Owino and any violent clashes with policemen can be attributed, in part, to the role Mr. Owino plays in bringing them to the venue in the first place. This is, obviously, rubbish thinking but in Kenya rubbish thinking seems to be all that we are left with.

What is important to remember is that Kenyans have a long history of police abuses, especially the detention and disappearing of arrested Kenyans, sometimes permanently, during which may of the detained were tortured, permanently maimed or murdered. Mwai Kibaki's government was no respecter of the rights of arrested and accused persons. It wasn't as violently oppressive as the Jomo Kenyatta or Daniel Moi governments, but it was repressive just the same. Uhuru Kenyatta's presidency did not end with a clean bill. It appears that the full implementation of Article 49 and 50 has a long way to go under the present regime.

Kenyans are called to test their fealty to the protections afforded to arrested and accused persons and this call is connected to the treatments of one of the most recklessly disruptive and destructive politicians to be elected to the 13th Parliament. Mr. Owino was accused of grievously wounding another man using his licensed firearm. Mr. Owino, it is reported, has undertaken several schemes to undermine his prosecution and to interfere with the witnesses to his alleged offence. He is not a sympathetic victim of police excesses. And yet, if we can discriminate between sympathetic victims of police violence and non-sympathetic ones, then we might as well do away with Article 27 which expressly prohibits discrimination on any grounds.

Campaigning for the protection of Mr. Owino's rights and fundamental freedoms is not synonymous with asking that the charges he faces for his other crimes be set aside or he be released from his obligation to face justice. But merely because Mr. Owino is "known to the police" should not be an excuse to use him as the tabula rasa of the Bill of Rights, to be erased and rewritten at will by the forces of unlawfulness and disorder. Benjamin Franklin thought “that it is better a hundred guilty persons should escape than one innocent person should suffer.” If we truly wish to acculturate ourselves to the principles espoused in the Fourth Schedule, then we must hold the National Police Service, and the masters it appears to serve, to account for the arrest, detention and disappearance of Mr. Owino for if we don't, eventually, we will all be at the mercy of policemen exercising powers for no reason other than they felt like it. We cannot afford to rebuild the criminal presidencies of the four presidents that came before the incumbent.

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