Tuesday, May 6, 2014

The Constitutionality of Operation Kasarani


I've been reading the constitution for a series of posts on things I am not an expert in; this is one such post. You guys already know what I think about the police action at Kasarani, however, looking at it from a constitutional angle perhaps it is wrong.

The fourth chapter of our constitution section 24, subsection 5 talks about the rights that the police may limit:
  1. Privacy
  2. Freedom of Association
  3. Assembly, Demonstration, Picketing and Petition
  4. Labour Relations
  5. Economic and Social Rights
  6. Rights of Arrested Persons
Note, these rights can only be limited if parliament passes a law limiting them.
Looking at Sections 28 and 29 that protect human dignity and the freedom and security of the person, we're all entitled to protections from arbitrary detention, torture of any kind and treatment that is cruel, inhuman and degrading.

Section 49 which talks about the rights of any arrested person talks about them being allowed to talk to advocates or any person who may be able to help them and also they're to be brought before a court within 24 hours of arrest.

Now I've not heard of any laws that have been passed allowing any limits to any freedoms so Section 24.5 is immaterial to this post and the overall debate, but sections 28,29 and 49 may have been violated. Kasarani does sound and look like arbitrary detention. You could argue being locked up is psychological torture. Meanwhile if some of the reports coming out of that place are to be believed then the treatment is definitely cruel, inhuman and degrading. And the fact that the people who have been not been allowed outside contact is definitely a violation. Though I'm not completely sure, they may be holding some of them longer than 24 hours.

Which brings me to a final point I want to make; if am right, and unfortunately I think I am, why aren't all the people complaining on twitter and other platforms doing something about this? I mean some of them are lawyers and others have the money to afford one. In fact, I don't think a lawyer is needed, and section 22 allows people to bring up a case on behalf of others and in the public interest. It, section 22, even allows the case to be brought based on informal documents, so the bar is really low.

I think people just like to complain, to be outraged, because it's the right thing to be seen to do but really as long as it doesn't directly affect them. Of course I could be talking about something that is already before the court but I would have heard.

I really do wish someone would take the government to court over this though. Because even if I agree with the action, I still do, I don't agree with violating the constituition. I wish that the police would do their job and avoid all these violations because if the constituiition is suspended just for the sake of catching terrorists what happens if the government begins to classify people they want to disappear this way? Activists, journalists and civil servants(see Egypt if you think that can't happen here).



So I happened to talk to an appellate judge – yes, I know people – about this post (it was already written) and the conclusions I had come to after reading the constitution and I asked him if I was right. He told me that I was. Apparently, earlier it was almost impossible to get before the court on human rights issues because well, bureaucracy, rules and procedures but when we were doing our new constitution we took a leaf out of India’s play book where inmates could move the court, interesting lawyer words right there, simply by writing a letter. Anyway the crux of the matter is that in this issue all it would take is dropping of a letter at the Supreme Court and they would have to go out of their way to accommodate you and hear the matter.

So all the people complaining you have a clear path to follow on this matter. In fact I’d wager that you’d have a very high chance of getting a favourable rule because I’ve noticed the Judiciary just loves to flex for the Executive. Peace!!!

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