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Baragoi Police Deaths, Parliamentary Immunity & Long Standing Issues....




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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