Court bars police from arresting protesters, holding them incommunicado

The Law Society of Kenya has moved to court to stop deployment of the military to control protestors.

The LSK sued Defence Cabinet Secretary Aden Duale and Chief of Defence Forces Charles Kahariri to stop the deployment of military to quell protests in the country.

This came as High Court in Nairobi ordered the police to allow lawyers access their clients in a case filed by the LSK.

Justice Lawrence Mugambi issued the orders in a separate case filed by the society and Irene Otto over abductions linked to the police.

“Pending an inter-partes hearing of this application, an interim order be and is hereby issued directing the Inspector General of Police and any other police officer under his command to allow advocates access their clients and communicate with them at any time or stage pf arrest as required by Article 49 (1)(c),” Justice Mrima ordered.

In the meantime, Justice Chacha Mwita issued an order barring the police from either arresting or holding protestors incommunicado in a separate case also filed yesterday.

Further, two more cases were filed seeking to force the government to produce persons who were said to have been abducted by the police either alive or dead.

In the KDF case, the lawyers' lobby accused Duale of unilaterally calling the military personnel from the barracks without following the law.

The Faith Odhiambo-led society asserted that none of the protestors who are against the Finance Bill 2024 are armed.

In its case filed before the High Court, LSK argued that there was nothing in the protests that would have been deemed as an emergency­­­­­­­­­­­.

LSK lawyer Chrysostom Akhaabi argued that there is nowhere in the law that the military to support the police in responding to ‘an emergency.’

He claimed that Duale’s actions were fanciful or made up in order to execute a purpose that does not exist in the Kenyan law or the Constitution.

Akhaabi also argued that the minister had no powers to declare a state of emergency. He stated that only the president could do so.

He said that no emergency, disaster, insecurity, unrest or instability, has been officially declared to exist in Kenya. Hence, the court heard, there was no justifiable reason to deploy KDF to support the police.

"There is no demonstration that the National Police who have the principal Constitutional mandate of maintaining law and order for civilians in the Country,  or any other civilian security agency or authority, have been overwhelmed or are  otherwise inadequate or incapable of dealing with any peaceful protests or any  surges of violence, unrest, destruction or breach of critical infrastructure which may  arise from the current peaceful demonstrations against the Finance Bill 2024 being  witnessed,” argued Akhaabi.

He said the minister’s actions amounted to unleashing and setting up armed and trained disciplined forces officers against civilians carrying placards and water bottles while picketing.

Justice Mugambi heard that Duale will go in history as the first person to have military out of the barracks in a bid to intimidate and muzzle those against the controversial Bill.

“What makes this illegal and unconstitutional move clearly unprecedented is that save for the military coup in the year 1982, no other time in the history of our Republic has there ever been a carte blanche deployment of the military for purposes of supporting the National Police during civilian demonstration,” the lawyer said.

The lawyer asserted that so far, there is nothing in the protests to warrant KDF to get involved in civilian affairs. He stated that the move was illegal, arbitrary and completely unconstitutional.

“It is generally acknowledged that the military are not best suited and not professionally trained in dealing with internal security matters which involve civilians, notwithstanding the fact that the constitutional threshold was not achieved before the Cabinet Secretary for Defence deployed the KDF in this case,” he said.

LSK also filed a separate case seeking to force the police to produce 12 persons who were said to have been abducted by the police.

Those listed are columnist Gabriel Oguda, Shadrack Kiprono, Ernest Nyerere, Kelvin Monari, Zadock Nyamari, Dr. Austin Omondi, Billy Simami, Drey Mwangi, John Githiaka, Brian Ngira and Khalif Kairo.

Several of those abducted have since been released. Oguda was held at Kajiado Police Station and was freed on Wednesday without charges.

Justice Mwita ordered that they should be set free unconditionally.

The society told the court that over 400 persons were arrested but not charged while 50 were abducted and their whereabouts were unknown.

“To the extent that the respondent abducts the petitioners, hold them incommunicado and are never charged in any court of Law is a breach of their right to freedom and security which includes their right not to be subjected to torture, be treated or punished in a cruel and degrading manner, being detained without trial and their right to liberty deprived without any just cause,” argued LSK lawyer George Bosire.

In the meantime, Justice Andrew Mwamuye issued orders requiring the police to produce any person arrested persons before a court of law within 24 hours as required by the law.

This is in a separate case filed by Joy Awich, Muthoni Matu, Kipngetich Eman, Carolyne Mwikali, Stephen Obunde, Raymond Burgei, Felix Gatobu, Chatherine Njoki Njanja. Tim Kut, Wesley tome and Imran Kasumba.

The petitioners who are lawyers lamented about police abuse of power and reckless beating of unarmed protestors.

“Pending the inter-partes hearing of the Application, the Inspector-General of Police shall ensure that all Officers of the National Police Service strictly abide with the provisions of Article 49 (1) (a) – (f) of the Constitution with regard to any persons arrested in relation to the subject matter of the application,” ruled Justice Mwamuye.

In the case, lawyer Pareno Solonka said that the arrests, abductions and beatings were unnecessary as Kenyans were protesting against plunder and big headedness by the Members of Parliament.

"In response to the petitioners' and other Kenyans' grievances, certain Members of Parliament in a flurry of insults and chest thumping came out in support of the Finance Bill 2024 stating that they would pass the bill as is, to the dissatisfaction of the Petitioner and other Kenyans,” said Solonka.

They want the Inspector General of Police Japheth Koome and Nairobi County Commander Adamson Bungei personally held liable for all that happened.