As I write this, The Kenya Police Service personnel are interviewing several legislators at various police stations in the country. These legislators are the target of investigations following denunciations by politicians, activists and NGOs.
The initial targets of these investigations were opposition CORD politicians. They had been reported by Ruling Coalition activists for alleged “hate Speech”. Later, the Law Society of Kenya swung in to action and denounced a number of politicians on the other side of the political divide, unleashing another round of summons by the Director of Public Prosecutions (DPP). There are yet no questions about the impartiality of the DPP’s office and one is persuaded to think of it as a fair exercise of prosecutorial responsibility.
However when looked at it deeper, one notices that it is not usual for the police to sit and look at their watches awaiting an “order” from the DPP to arrest any politician the police’s whims direct them to. The police have over the last 12 years developed a habit of undertaking “political questioning” of political opponents of those in power. Kenya is a country known for Extra Judicial Killings, unexplained and mysterious deaths, assassinations and tribal killings. So what happens whenever a person – mostly politician cries out in fear for his life sure there are persons unknown after his life? In decent countries, one would expect the police to take any warnings of impending deaths seriously and perhaps provide interim security while investigating the veracity of the threat! Not in Kenya.
The knee-jerk reaction is to first publicly accuse the scared individual of paranoia. Then with menaces and insinuations not far from direct accusations of lying, “invite” the said person to “write a statement”. In one case I know, when the individual summoned protested and was willing to ignore it all, a senior policeman threatened to have him arrested and dragged to the nearest police station to write that statement. The man gave in. Another – now a minister and on a slightly unrelated matter – was actually arrested and kept in a cell for a few days while the police read through her statement.
So we have a situation where 18 legislators have been summoned to various police stations. In one case, the police are known to have irrationally insisted that an MP worried that his brother might be assassinated, travel 600 kilometers to record a statement with the police station in the constituency he represents. Never mind that it has been standard Kenya police jingo to tell citizens to report crime to “any police station”; in this time and age, Kenya has a government that describes itself as “digital”!
Legislators are important to the functioning of democracy. Kenya has a history of the Executive branch arm-twisting and manipulating parliament so as to achieve its intrigues. There was an attempt to buy opposition MPs in 2008 so that the Kibaki government could control the agenda of parliament through a partisan speaker. When that failed (largely because any MP seen to have taken a bribe at that time would have paid for it with more than his seat in the next election), it is an accepted fact that the Kibaki government embarked in a curling process that unleashed international protests. Four opposition MPs were killed or died under suspicious circumstances.
That is why I am advocating for a change of the law to grant legislators immunity from arrest and prosecution. This immunity shall only be lifted by parliament upon the furnishing of evidence and establishment of a prima facie case against the legislator.
This is the case in many countries and has served to reduce instances of abuse and intimidation.
It is my view that this immunity shall not be abused if parliament takes its role seriously and that whenever the country’s democracy is stable enough, it can be removed.
If not, what would prevent the executive from using a compliant police force to arrest enough legislators and achieve a majority for the enactment of selfish laws? For now there is no guarantee against such an abuse. Parliament should wake up to that challenge and protect itself from the whims of the executive.