Turkana Mps Ekwe Ethuro
and Josephat Nanok - Courtesy of The Star Online Edition
As
debates go on in parliament and discussions take place about what exactly
transpired in Baragoi – Suguta valley, I thought I would have a look at some of
the issues that emerge from the debates - some constructive, accusations – and
mostly counter accusations, and the notable increase in incidents of insecurity
as we fast get into campaign mode (or do we already have that as a default
setting!?).
The
last week has seen a lot of genuine concern raised about the security sector in
our country and that a lot more needs to be invested in it. Criticisms have of
course been labeled against civil society about being quiet when the police
suffer but extra vocal when criminals suffer at the hands of the police. Well
just as a correction there, civil society as I understand isn’t limited to
human rights organizations. Indeed though these issues fall squarely within the
mandate of these organizations, civil society comprises of all of us and the
fact that there is genuine outcry and debate (I want to believe so) over the
issues is a good thing!
Well
before the issues were debated on the floor of the house MPs from these arid
parts of Kenya (Turkana) held a press conference within the precincts of
parliament and opposed any resolution to deploy the military to deal with the
alleged bandits (I actually had to correct a media house which tweeted that its
reporters had seen the bandits while flying over the area – these are alleged
bandits up until they face the law and are found guilty of the said offences).
The MPs later had to scamper for safety after word went round that they were
being sought by police over allegations of incitement to violence (aka. war
mongering). Two were arrested and charged but the framing of charges was found
to be defective and dropped. The other still faces
arrest and prosecution after he failed to stop the arrest.
Parliamentary Immunity
All
these MPs claimed parliamentary privilege as the reason for their refusal to
take plea – freedom of speech for words uttered in the precincts of parliament.
What exactly is parliamentary privilege or immunity? It of course varies from
country to country. We have both conservative and liberal approaches to this.
Conservative includes South Africa where this immunity is restricted to the
floor of the house (debates) and parliamentary committee sittings. In Sweden it
extends further to conferences held by MPs when parliament is in session.
France on the other hand takes a more liberal approach which is broadly actions
in fulfillment of a parliamentary mandate. Kenya shares the UK approach
(surprised!?) which limits immunity to the precincts of parliament i.e. the
floor, committee meetings, any parliamentary group meetings and press
conferences.
This
immunity can however be lifted and there is a process provided in the National
Assembly Powers and Privileges Act. The Act establishes a Committee of
Privileges which based on a finding of gross abuse of privilege makes a
recommendation which has to be adopted by the house. So this would certainly
cover the Turkana MPs from prosecution for statements made as stated at that
point.
Another
issue that usually emerges is on commenting on issues already in the Hansard
(parroting I would call it) and whether this too is protected. Well it is but
only after there is a record of it having been discussed in parliament. The Turkana
MPs in this case discussed the issue before it was brought to the house for
debate.
Further
some situations may give jurisdiction to the courts over these issues. In the Dickson Daniel Karaba (Election Petition – 3 of 2008) as
well as Peter O. Ngoge (Misc. Civil Applic. 22 of 2004) the
High Court was very clear of the principle of separation of powers as regard
the conduct of parliamentary business. It however pointed out that when there
is a ‘clear transgression of rights and liberties of citizens’ or where there
is ‘a violation of the Constitution’ then the courts would have jurisdiction.
Long Standing - Underlying issues
The
underlying issues are very significant in these debates. Kenyans are alive to
the level of marginalization and neglect in these parts of the country. Kenyans
too are not blind to the harshness of the working conditions of the police
deployed to these areas – in fact as has been the practice within the
police force (now service) failure to protect or perpetuate the status quo lands you in these areas (and a career
thrown into oblivion) as a punitive measure.
The
MPs raised very genuine concerns. They gave evidence of marginalization and
neglect citing papers debated on the floor of the house almost 30 years ago.
They further decried the dangers of using the military considering their track
record on previous occasions where they have been called upon to police – Re:
Mt. Elgon and most recently Garissa (where I have the feeling they deployed
themselves!! )
Are
the arrests, summons and prosecutions of these members of parliament an attempt
to genuinely deal with the danger of incitement to violence? Or are these
attempts to silence the Mps and the communities generally from raising long
standing issues – hence sending a message to these marginalized communities
that if the most vocal among them, those they have given a mandate to cry on
their behalf can be silenced, they too should ‘lay low like an envelop’?!!
The
Constitution envisions a police service, a defense force and an intelligence
service which respects the rule of law, is accountable to the people of Kenya
and not a police or a defense force whose first reaction to accusation of grave
human rights violations is a blatant denial in the form of a lengthy and
verbose press release!
MY
TAKE_
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