Kenyan Attorney General Amos Wako Facing His Waterloo – Legal Battle Looms over His Travel Ban

Kenyan Attorney General Amos Wako confirmed Wednesday November 4th 2009 that he is banned from travelling to the United States and announced his intention to sue for defamation

Kenyan Attorney General Amos Wako confirmed Wednesday November 4th 2009 that he is banned from travelling to the United States and announced his intention to sue for defamation

AN EXERCISE IN FUTILITY WE THINK.  THE ATTORNEY GENERAL’S CLOCK HAS RUN OUT FOR GOOD REASONS.

Goodbye

What Next After the Jamhuri Day Fiasco: – Communique from the Partnership for Change 15th December 2008


WHAT NEXT AFTER THE JAMHURI DAY FIASCO

On December 12, 2008, the government of Kenya marked the 45th anniversary of the Independence of Kenya with a deliberate and calculated attack on the fundamental rights and freedom of the Kenyan people. Thousands of Kenyans across the country were arrested and brutalised by the Kenya Police for wearing black t-shirts. Many were detained in holding cells in stadiums, in police trucks and at police stations across the country. By the end of the day all were released save for several members of the Partnership for Change who were held for three days in violation of their fundamental rights.

Further, the Partnership for Change strongly condemns the arrest of journalists this morning. It is a shame that journalists who were acting in their normal professional duties were arrested and charged on court. Despite the fact that the retrogressive bill has not been signed into law, the government is already cracking down on the media. The recent use of force by the state security forces against innocent Kenyans must be punished. We demand the immediate resignation of the following people for their role in the illegal crackdown against the people and the media:
• The Minister for Internal Security, Prof George Saitoti
• The Commissioner of Police, Major General Hussein Ali
• The Minister of Information, Mr. Samuel Poghisio
Kenyan politicians are not likely to resign, we are aware. We are, therefore, additionally asking the Prime Minister who is responsible for supervising the various ministries to recommend to the President that the two Ministers be immediately removed from our cabinet.

About the Partnership for Change:
The Partnership for Change is an initiative of the Mars Group Kenya and the Kenya Network of Grassroots Organisations (KENGO) that seeks to bring to new impetus the change agenda in Kenya by using non-violent methods of public advocacy which we believe are authorised by the Constitution of Kenya. Founded on principles of inclusiveness and participation, membership to the Partnership for Change includes well-established civil society organisations and dedicated individuals who believe that it is possible to move to democratic accountability using non-violent means. The illegal arrests and detention without charges of peaceful Kenyans who have reasonable demands of the government and a reform agenda is an affront to all Kenyans and portends a slide to dictatorial impunity that must be strongly resisted.

At stake are the fundamental rights of all Kenyans as guaranteed by Chapter 5 of the Constitution and the National Accord. We note with concern that the 10th Parliament has failed in its duty to legislate in accordance to the Constitution of Kenya and has instead converted itself into a tool of dictatorship which is used for the selfish gains of the political elite. The entire 10th Parliament stands indicted for its failure to safeguard the rights of Kenyans and even worse, for its deliberate actions to curtail, deny and derogate the rights that are guaranteed by the Constitution.

Examples of blatant abuse authority and neglect of duty by the 10th Parliament include the recent tendency of MPs to legislate through informal sittings dubbed “Kamukunji” which are not provided for by any law and are therefore illegal, lack legitimacy and are not transparent. Unlike with the proceedings of Parliament, no records are kept at these Kamukunji sittings. Both the President and the Prime Minister have been reported to be attending these illegal meetings that are used by MPs to blackmail the two principals and undermine the wishes of the public.

As a result, retrogressive laws meant to serve narrow ends of the political elite are now being introduced. Both the Finance Bill, 2008 and the Communications Act Amendment Bill, 2008 which have drawn the wrath of the public were made in the illegal Kamukunjis and only taken to Parliament for polling rather than for debate. This attack on our representative democracy must be stopped. Kenyans will resist and defy any laws that limit the freedom of the press or allow MPs to shield themselves from civic duty, including taxation.

At stake is our prosperity as a nation as we continue to wallow in abject poverty caused by misappropriation of public resources, illegitimate national debt and corruption for the benefit of a few and at the expense of millions.

We have understood the statement of government in arresting and detaining innocent Kenyans on Jamhuri Day. The government’s message is “be silent”. Our response is “NOT NOW, NOT EVER” Our country needs us and we need each other. We will not allow temporary setbacks to stop us or intimidate us. Kenyans will be free. Our media will be free. Our rights will be respected. Arrests are not a solution to the government’s problems. There are simply not enough police cells to lock up the population for wearing t-shirts!

The Partnership for Change now calls on the government to deal with the myriad of problems it faces squarely. Shooting the messenger, whether the Kenyan press or the Kenyan people will not resolve anything. Serious problems require serious solutions and serious people to address them. We, the people, are serious- the government MUST act in accordance to our will.

Update on the Jamhuri day arrests:

JAYNE MATI and MWALIMU MATI were held at the Lang’ata Police Station for three days and were released without any charges. The police only released the two after several non-violent protests including sustained day and night vigils at the Lang’ata and Garissa Police Stations, road blocks and other venues including the Uhuru Park, Ufungamano, Jeevanjee Gardens among others.

Four partners for change who were being held at the Garissa Police Station -KHALIF ABDI, ABDINASIR SALAT, YUSUF ABDI and ADEN KOSAR- were arraigned in court this morning where they pleaded not guilty to charges of causing a disturbance and were released on a Kshs. 5,000 cash bail. Their case will be heard in January, 2009. Legal representation and cash bail were provided and the four are now free on bond.

Demand for the Full implementation of the National Accord:

The Partnership for Change calls for and will continue to call for the immediate implementation of the National Accord of February 28, 2008 as is, without negotiations, failing which the Kenyan people wish to have their right to an election to replace this dictatorial parliament and government. We demand the FULL implementation of Agendas 1 up to 4 of the Kenya National Dialogue and Reconciliation Process without equivocation.

Implementation of the National Accord is not limited to tribunals and commissions of inquiry. Implementation requires root and branch institutional reforms and this starts with personnel change. Besides the overhaul of personnel at the Electoral Commission of Kenya, we demand the sacking of the Commissioner of Police who is personally responsible for the continuing violation of the fundamental rights of Kenyans to life, liberty and the secure protection of the law. The Police Commissioner bears the greatest responsibility as the head of a force that has gunned down over 1,000 Kenyans over the last 24 months (CIPEV and KNCHR) and for which he shows no remorse. We demand that the President, who is the appointing authority, removes Major General Hussein Ali from his current position as the Commissioner of Police.

Evidenced by the fact that he has been promoted from the rank of Brigadier to Major General during his tenure as the Commissioner of Police, Major General Ali is still an active member of the military. The Partnership for Change will hold Major General Ali personally accountable for the violations of the rights of Kenyans and will pursue legal remedies for ourselves and on behalf of the people using all enabling local and international laws.

Urgently recall Kofi Annan and reconvene the Panel of Eminent Persons of the African Union charged with the Kenya National Dialogue and Reconciliation Process.
If the Grand Coalition Government is not able to implement the National Accord, and it is becoming apparent that the government has neither the good will nor the influence to deliver, and considering that Kenya is now in a renewed crisis and that the two principals, President Kibaki and Prime Minister Raila Odinga are either unable or unwilling to deal with the emerging social, economic and political crisis in the country there is need to urgently bring back the Kofi Annan team as the situation is getting more grave.

Demands to the President and the Prime Minister:

1. Implement the National Accord in its entirety and uphold the Constitution of Kenya as you swore to do, or resign and call an early election. Stop bargaining with our rights at illegal gatherings. It is an abuse of executive authority to conspire with Members of Parliament against the people in illegal kamukunjis. Laws in Kenya should be made in Parliament or not at all. If the President and the Prime Minister are unable to govern using the Constitutionally established channels, they should have the courage to declare that openly and to dissolve parliament and call an early election.

2. Do not assent to the offensive finance and media bills. We demand that the President refuses his assent to the Communications Amendment Bill, 2008 and to the Finance Bill 2008. At a time when we have no opposition, the media has a very important role of informing the public and also of oversight. Freedom of our press is not negotiable; we have a right to a free press and to information. None of our fundamental rights are negotiable.

All Kenyans must pay taxes. We demand that MPs and other holders of constitutional office who are exempt from paying taxes be compelled to pay taxes. The people of Kenya demand that the President exercises his executive authority and returns the finance bill to the National Assembly.

3. Zero rate for taxes all food, fuel and electricity to reduce the cost of living for Kenyans. We demand immediate relief for the poor. Food must be zero-rated for tax so that Kenyans can eat. This cannot wait for 10 days or until next week. Financial discipline and austerity measures by government can easily raise any revenue deficit. A casual look at our recurrent budget reveals 200 billion shillings of waste and mismanagement.

4. Either declare a state of emergency or stop infringing on the rights of the people. Unless there is an on-going state of emergency, the paramilitary officers posted at the Uhuru Park in Nairobi should be removed immediately. Restricting citizens’ access to public parks is unwarranted. We understand that it is calculated to stop the people from enjoying their constitutionally guaranteed rights to freedom of expression, movement, assembly and association. These rights are inalienable. They are not negotiable.

The government must be clear that Kenyans are alive to their responsibility and have decided to respond to impunity and resist dictatorship as we work to restore democratic accountability in our beloved country.

Our message to our politicians and government institutions is that the Kenyan citizen is now in charge and will hold you to account. Our non-violent actions in demand for change will continue in earnest.

The Partnership for Change
Date: December 15, 2008

Ambassador Muthaura Has No Parliamentary Authority or Powers to Give Pauline Musyoka Ksh 400,000 Per Month (4.8 Million Per Year) for Her Charities. Kenya’s Controller and Auditor General Must Exercise Her Constitutional Powers to Disallow the Muthaura Gift and Put an End to Political Patronage.

Ambassador Muthaura has no Parliamentary Authority or powers to give Pauline Musyoka Ksh 400,000 per month (4.8 million per year) for her charities. Kenya’s Controller and Auditor General must exercise her constitutional powers to disallow the Muthaura gift and put an end to political patronage.

Illegal Charity: at public expense

A debate rages on in the Kenyan press with split opinion about whether Pauline Musyoka, wife of Kenya’s Vice President Kalonzo Musyoka, should have kept the Ksh 400,000 a month she was “offered” by the Head of the Public Service, Ambassador Muthaura as compensation for “wise counsel and guidance which contribute to the public good in the course of nation building activities, besides playing hostess during national and other official public engagements.”

Mrs. Musyoka has said she will after all accept the offer but give it away to several charities, unlike Mrs. Ida Odinga who sensibly refused a similar offer last week.

It’s not really about the amount of money involved.  The problem Mrs. Musyoka will have, going forward, is that Ambassador Muthaura’s “offer” is, ipso facto, illegal and unconstitutional regardless of her charitable intentions. This illegality will remain unless and until a supplementary revised national budget is approved by Parliament. It is doubtful that Parliament would approve such expenditure if it was asked. This exposes her to surcharge and other embarrassment if the Controller and Auditor General reports adversely.

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Patronage system:

Ambassador Muthaura’s gift unwittingly exposes a secret and longstanding practice in Government of discretionary and arbitrary spending on the personal comfort of the families of high-ranking officials. Under Kenyan law, Mrs. Musyoka is not actually entitled to public funds as the Vice President’s wife per se. To complicate matters further, apparently Mrs. Musyoka already has a job at the Central Bank of Kenya.

Mrs. Musyoka is certainly not the only current beneficiary of such relational largesse. What is different this time around is purely a question of bad timing. If Kenyan taxpayers were not already so overburdened by the economic hardships resulting from the political crisis following the 2007 elections, the debate might have been far more muted as was the case last year when Ambassador Muthaura announced a pre-election gift of Ksh 500,000 per month to President Kibaki’s wife, Lucy Kibaki.

However, and unfortunately for Ambassador Muthaura, the implicit corruption in such glaring bureaucratic manipulations of public spending choices is clear. Over time, Kenya has developed a patronage system which transfers money from ordinary taxpayers to high income individuals ostensibly so that they can act as intermediaries in assisting the poor. The patronage gravy train culture is well engrained amongst Kenyan officialdom. The logic of spousal allowances of the type offered to Mrs. Musyoka is after all really no different from the argument Kenyan parliamentarians advanced last year when they voted themselves “severance pay” from public coffers. The worry is that the political patronage system has run wild – whether it can be stopped before the bank is completely bust is the only question yet to be answered.

Legal Position: Ambassador Muthaura is subject to the Law

No matter the justification (charitable purposes included) Kenyan law requires all Government of Kenya expenditure to be authorized by Parliament and to be specified in the National Budget. Mrs. Musyoka’s charity is not so authorized or specified – and certainly is not exempt from existing legal strictures. Ambassador Muthaura presumably knows all this but for whatever reason has decided to quietly ride out the storm rather then correct a most obvious error of judgement of public opinion.

Legally, Ambassador Muthaura is skating on thin ice. It would not be going too far to say that in fact Ambassador Muthaura’s actions are illegal, unconstitutional and punishable by Kenyan laws. The Constitution is clear – Ambassador Muthaura the highest ranked civil servant is under a duty to ensure that he does not assume powers which are reserved to Parliament by rewriting the National Budget to insert unapproved expenditure into Government operations. If Parliament last June had wanted to give Mrs. Musyoka an allowance it would surely have done so. As far as the Government Financial Management Act of 2004 goes, Mr. Muthaura may find himself personally liable for any losses occasioned by his recent gift-giving.

Scrutiny of the entire 1517 pages of 2008/2009 Estimates of Recurrent Expenditure of the Government of Kenya for the Year ending 20th June 2009, and specifically the details of personal emoluments and other allowances, will not reveal any budget line item for allowances to the Vice President’s wife for any purpose. When the budget was tabled on June 12th 2008, the Minister of Finance did not ask Parliament for authority to withdraw from the Consolidated Fund an allowance for the spouse of the Vice President. If no parliamentary approval was sought, and no parliamentary approval was given, then many argue that it surely follows the pay offer by Mr. Muthaura is extra budgetary and illegal.

The Acting Minister of Finance, John Michuki, says he is unaware of how these payments are to be made. Given that Section 6(1) of the Government Financial Management Act 2004 says “no expenditure involving a charge on the Consolidated Fund shall be incurred without the general or specific Authority of the treasury” on what authority or with whose permission is Ambassador Muthaura directing these payments should be made? Few will argue that Kenyans are not entitled to an answer to this question; after all it is their tax money which is being used.

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Whether he likes it or not Ambassador Muthaura is subject to Kenyan law. He is an accounting officer and therefore responsible to the Treasury to ensure that no expenditure is made unless it is “lawful, authorized, effective, efficient, economical and transparent.” So says Section 18 of the Government Financial Management Act.

Under the law, Ambassador Muthaura bears personal responsibility (or liability) for public funds misallocated under his charge. Section 33 of the Government Financial Management Act says that Government officers (which applies to Ambassador Muthaura) are “personally liable to the Government for any losses or damages occasioned” by their handling of public money.

Unless some assurance has been given that no consequences shall ensue, Ambassador Muthaura should pause and reconsider his decisions. The fact is that for what he has done, each year public officers are named and shamed by the Controller and Auditor General’s reports on the accounts of Government. Every year, some offending officers are surcharged for losses, disciplined and occasionally prosecuted. However, no-one of his rank has fallen foul of the law, yet.

Advice for Kalonzo Musyoka:

For the Vice President this affair has its own perils. The Vice President is a man of the law who recently campaigned for the Presidency as ‘Mr. Clean’. It is bad political judgement on his part not to understand that the way this affair is going, he looks like the real beneficiary of the Muthaura offer.

The wags would say to him: ‘Yes, indeed Pauline will give away the money to charity, but whose political career benefits out of her charitable work? What happened to your charitable foundation?  And what about your wife’s much commented on job at the Central Bank of Kenya?’

Friends might say more to him: ‘You are already extremely well taken care off – remember many don’t even want you to live in the new Karen mansion that is being built for you at great public expense. You don’t want to look as if you are taking advantage of your position in this time of economic hardship – the charity should be done by the Government not you.’

A reading of the National Budget (as contained in the 2008/2009 Estimates of Recurrent Expenditure of the Government of Kenya for the Year ending 20th June 2009) reveals the extent of the taxpayers’ investment in the personal comfort of the Vice-President and his household. Objective persons might conclude that it appears that the Kalonzo Musyoka household is more than adequately provided for by the taxpayers of Kenya – perhaps even more than generously.

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What does the Vice President get?

The total cost of the Vice-President’s household and the press service which follows him at home and abroad is Ksh 230.7 million this year alone. The VP’s house allowance is Ksh 2.4 million (Ksh 200,000 per month). You will find this expenditure at page 234 of the 2008/2009 Estimates of Recurrent Expenditure of the Government of Kenya for the Year ending 20th June 2009. Look for Vote R05 Office of the Vice President and Ministry of Home Affairs, under vote head No. 240 – Vice President Press unit and Household Services.

The Vice President’s household has an annual budget of Ksh 4.3 million for hospitality – about Ksh 358,000 per month. Just over Ksh 30 million is budgeted for rent under the VP’s Household budget line. The household can consume Ksh 14 million per year on fuel and stay within budget, while also spending Ksh 11 million on routine maintenance of vehicles, and a further Ksh 6.5 million on maintenance of other assets in the households. This year, over Ksh 75 million has been allocated to the VP’s household for domestic and foreign travel. Last year the Vice President’s official household comprised of 57 staff and there were 12 cars.

Clearly, the elevated political status of the Kalonzo Musyoka family is already well taken care of. Taking any more from poor Kenyans appears churlish and inconsiderate.

To those responsible for correcting the situation:

When all is said and done, certain institutions should have stepped in to speak and act for Kenyans, but they haven’t. The Controller and Auditor General being just one of them. Perhaps the Controller and Auditor General might exercise her constitutional powers under section 100 of the Constitution to disallow the Muthaura gift, and put an end to the patronage he is dispensing.

Certainly, Parliament must put its foot down and stop Ambassador Muthaura from running amok with public funds. They should remind him that it is illegal to do what he has done, and punish him if he is recalcitrant. Parliament should also urgently review the proposed expenditure on the households and personal comfort (e.g. limousines) of the top national leadership. Where waste can be trimmed the savings should be directed to development expenditure for the real benefit of the public.  Billions can be saved.

One also expects Kenya’s voluble civil society to join the debate pro bono publico, but sadly only the much oppressed Bunge La Mwananchi stands out in keeping the flame of accountability alive on this issue. Better funded and organized groups are silent on this important but seemingly sensitive issue. We have in mind for example the recently formed National Taxpayers’ Association which needs to urgently start speaking out on the misuse of public funds for political patronage in Kenya.

Mwalimu Mati

Mars Group Kenya

The Relevant Law:

The Constitution of the Republic of Kenya

Section 99. Consolidated Fund and other funds of the Government of Kenya.

(1) Subject to subsection (2), all revenues or other moneys raised or received for the purposes of the Government of Kenya shall be paid into and form a Consolidated Fund from which no moneys shall be withdrawn except as may be authorized by this Constitution or by an Act of Parliament (including an Appropriation Act) or by a vote on account passed by the National Assembly under section 101.

(2) Provision may be made by or under an Act of Parliament for any revenues or other moneys received for the purposes of the Government of Kenya to be paid into some public fund (other than the Consolidated Fund) established for a specific purpose, or to be retained by the authority that received them for the purpose of defraying the expenses of that authority, but no moneys shall be withdrawn from any such public fund unless the issue of those moneys has been authorized by or under a law.

(3) Where any moneys are charged by this Constitution or any Act of Parliament upon the Consolidated Fund or any other public fund of the Government of Kenya, they shall be paid out of that fund by the Government of Kenya to the person or authority to whom payment is due.

(4) Parliament may prescribe the manner in which withdrawals may be made from the Consolidated Fund or any other fund of the Government of Kenya.

Section 100. Authorization of expenditure from Consolidated Fund by appropriation.

(1) The Minister for the time being responsible for finance shall cause to be prepared and laid before the National Assembly in each financial year estimates of the revenues and expenditure of the Government of Kenya for the next following financial year.

(2) When the estimates of expenditure (other than expenditure charged upon the Consolidated Fund by this Constitution or by any Act of Parliament) have been approved by the National Assembly, a Bill, to be known as an Appropriation Bill, shall be introduced into the Assembly, providing for the issue from the Consolidated Fund of the sums necessary to meet that expenditure and the appropriation of those sums, under separate votes for the several services required, to the purposes specified therein.

Section 101. Authorization of expenditure in advance of appropriation.

If the Appropriation Act for a financial year has not come into operation, or is not likely to come into operation, by the beginning of that financial year, the National Assembly may, by a vote on account, authorize the withdrawal from the Consolidated Fund of moneys (not exceeding in total one-half of the sums included in the estimates of expenditure for that year that have been laid before the Assembly) for the purpose of meeting expenditure necessary to carry on the services of the Government of Kenya during that year until such time as the Appropriation Act comes into operation, but any moneys so withdrawn shall be included, under separate votes for the several services in respect of which they were withdrawn, in the Appropriation Act.

Section 104. Remuneration of certain officers.

(1) There shall be paid to the holders of the offices to which this section applies such salary and such allowances as may be prescribed by or under an Act of Parliament. [FN: 13 of 1977, s. 4]

(2) The salaries and any allowances payable to the holders of the offices to which this section applies shall be charged upon the Consolidated Fund.

Section 105. Controller and Auditor-General.

(1) There shall be a Controller and Auditor-General whose office shall be an office in the public service.

(2) It shall be the duty of the Controller and Auditor-General—

(a) to satisfy himself that any proposed withdrawal from the Consolidated Fund is authorized by law, and, if so satisfied, to approve the withdrawal;

(b) to satisfy himself that all moneys that have been appropriated by Parliament and disbursed have been applied to the purposes to which they were so appropriated and that the expenditure conforms to the authority that governs it;

(5) In the exercise of his functions under subsections (2), (3) and (4), the Controller and Auditor-General shall not be subject to the direction or control of any other person or authority.

Minister Ngilu 100 Hours of Fight and Pure Fury

What really happened during Health Minister Charity Ngilu saga last week when she spent 18 hours in police and CID custody in buildings and at the gate of CID HQ on Kiambu Road? Why were 18 marchers arrested as the protests spilled out of control during what looked like a routine march to speak to Parliament in some other way than the usual?

Wanyiri Kihoro gives an eyewitness account of the dramatic events, which were impregnated with name-calling, allegations, deceit and pure fury among those involved. His account cuts across the civil rights marchers, the minister, former parliamentarians, the police, the CID, more than 10 police stations, the Makadara Magistrates and the High Court. He was there and saw it all in a grotesque reminder of similar events 18 years ago before the onset pluralist politics. The melodrama, triggered off by the proposal in Parliament to pay about Shs 6 million golden handshake to current MPs shook the nation. The sum is seen by many as a campaign chest for the MPs during the forthcoming General Elections.

  1. On Friday 27th August 2007, a press release went out to media houses informing them that one-day of action was planned against Parliament to protest the proposed payment of Shs 6 million gratuity to MPs in the 9th Parliament. The Former Parliamentarians planned the action to protest the payment on the grounds that if any gratuity must be paid, then the members of the 9th Parliament should be the last to be paid after the paying all their predecessors starting in 1963. Why, the press release asked, should those who deserve the money least, be the first ones to be paid?

  1. The civil society members were aggrieved too by the wanton payment to people who ha become famous for not doing their work. Why pay the current or former MPs, they demanded to know, when there was such grinding poverty across this land? More than 60% of Kenyan live below the poverty line, earning less than 70/- per day. The scarce resources should go elsewhere, where they were needed most.

Civil society went further. Why allocate the Youth Enterprise Fund only Shs 1 billion for over 20 million eligible youth when 224 MPs would be receiving Shs 1.5 billion to divide among themselves at a rate of over Shs 6 million each? It argued that the emoluments of the current members were already too high and at the official minimum wage of Shs 6,000/- per month, it would take 6 years to earn the monthly salary of an honourable member.

Speakers tackled the economics of the payment persuasively in front of the members of the public who were starting to stop and listen. All this was happening in front of the right place the Professional Centre, Parliament Road from 11am.

  1. The march on Parliament set off, all persuaded to the good cause. The demo was OK they said having notified the police and Parliament Building being a short 80 metres away. Why would anybody including the policemen want to stop the march the most eloquent speech of all to advance the common good?

  1. No sooner had the matchers started and had done a meagre 30 metres when it was stopped by the police. The marchers stopped and a standoff ensued for 5 minutes as the banners and posters, in their bright colours, did the talking. The police were not prepared to just stop and wait. The moved and fired teargas canisters at the demonstrators followed by a baton charge. Marchers Mwalimu Mati, Ouma Odera, Cyprian Nyamwamu, Ann Njogu and Okoiti Omtatah were arrested in the midst of the fracas and commotion. They were frogmarched to Parliament Police Station nearby, amidst protests, din and battery.

  1. Omtatah could have been dragged to the station but had now a handling complaint to make. That a policeman had battered him as he pulled him to the police station. He had not resisted the arrest and had willingly given in. He therefore demanded to know why the policeman for who he was fighting had told him on complaining that Next time, I will shoot you The complaint was duly recorded in the Occurrence Book.

  1. The writer, who is an advocate, goes to the police station to find out why the marchers soon to become the Parliament Road 5 had been arrested. Paul Muite also walks into the station. The marchers, we tell the OCS, should be released because they were involved in a perfectly legal and legitimate exercise. The authorities had also been informed about the march. The Five are transferred to Central Police Station, on the other side of town, within the hour.

  1. At the Central Police Station, the police are no longer in a hurry and nobody seems to know what will happen next. Those under arrest arrange for their own lunch at 5pm as people come and go. Their fingerprints are taken and they are told they will be charged in the courts with participating in an unlawful Assembly. Many family members and friends of the five arrive at the station filling to overflowing the corridors and some offices. Statements from the Five on what happened in the demonstration are taken.

  1. Minister Charity Ngilu, in her official car now visits the station at about 6.30 pm and is taken where the Five were being held. It is at this time that she finds Ann Njogu in a deplorable condition. She is being held in male dominated environment, denied privacy when she is pleading for this in order to change her clothes. The police wont listen and there was nobody to tell. Ann’s husband, Leonard Njogu visits the station and meets his wife.

Mrs Njogu is allowed to go to Mrs Ngilu’s car by the police. At this time, the police were preparing to move the Five to other Police Station. They are apparently moved out of the station in two vehicles, one carrying three demonstrators and the other one. They were loaded into the vehicles from the back of the police station at a time when the front doors of the station were shut. Ann is left in Mrs Ngilu’s car.

  1. It was time for the police vehicles to drive out of the compound as journalists and friends of the five hold a press conference. Within a short time, several teargas canisters are fired and come screaming through the cold night sky. Some land on the vehicles nearby, as panic breaks loose.

  1. Having lost Jayne Mati in the confusion, I now decide to make a call to her. Mwalimu Mati answers the call; one of those arrested and was supposed to be in one of the police cars, which had left the station about 10 minutes before. Mwalimu tells me We have just had an accident on Limuru Road near the Aga Khan University Hospital. The police are trying to kill us for fighting against corruption. Their car is the murder weapon in the hands of the kamikaze driver. The time was about 7.45 pm. I decide to drive to the scene of the accident abandoning the search for Jane in the teargas filled airs.

  1. 10 minutes later, I arrive at a point about 200 metres from the turn off to the Aga Khan Hospital on Limuru Road. I see a wrecked police vehicle on the right side of the road being prepared for towing. In front of the vehicle stands a matatu with no passengers inside but with some new impact dents and a shattered windscreen. Without stopping, I drive on to the Casualty Wing of the hospital. As I enter the wing, I meet and talk to Mrs Ngilu who was leaving the hospital and walking to her car.

  1. Inside the wing in one room there are 4 patients, the former marchers who were undergoing tests and being treated. There were many policemen in the room, in the corridor and everywhere I looked. The atmosphere was most intimidating and the sight of guns and the long black coats never far away.

The doctors were pleading with the police and the human traffic to leave so that they could be able to attend to the patients in some peace. The policemen were clearly interfering with the hospital operations as they kept close to the patients.

  1. This intrusion continued well into midnight as the police made every attempt to claim that the patients were feigning sickness and should be discharged. These efforts only ceased after the hospital closed down for the night, after new guards, from other police stations, took over for the night. During the change, it looked more like a garrison hospital.

The police were left patrolling the corridors as the patients were moved to a new room nearby. Members of the family of those injured kept vigil near the patients, in a state of distress and concern that their loved ones had been injured when in hands of police.

  1. Early on Wednesday August 1, there were renewed attempts by the police to have the patient moved elsewhere where they could have more control. This did not bare fruits as the doctors continued to refuse to discharge the patients. From 8am there were well over 50 people milling the corridors of the hospital, mainly uniformed and ununiformed policemen.

By about 10 am, arrangements are made to discharge the four from the hospital and they are dispersed to 4 police stations. Mwalimu Mati is taken to Karen Police Station, Ann Njogu to Kileleshwa, Odera to Buruburu and Omtatah to Langata. Cyprian remains in Muthangari.

  1. Leonard Njogu is taken to court on Wednesday morning and charged with assisting an arrested person escape police custody He pleads not guilty and is freed on Shs 50,000/ cash bail.

  1. With the possibility that the five would remain in the custody much longer, advocate move to court on Wednesday afternoon to obtain orders for the release of the five or delivery to court. Duty judge, Justice Mutungi grants the orders that the five be brought before him on Thursday 2nd August at 9 am.

  1. The five spend the night where they were and are moved to the High Court early in the morning on Thursday. The police prepared to charge all the 5 with participating in unlawful assembly. Ann Njogu was told she would face a second charge of escaping from lawful custody.

  1. The police make an attempt to charge the five in court No1. The defence oppose the taking of the pleas and through lawyer Pheroze Nowrojee tell the Magistrate that the attempt by the police to charge the five before her is in contempt of court. There was already a court order, Mr. Nowrojee stated, that the five should be produced before High Court Justice Mutungi at 9am. The Magistrate stopped the proceedings and directed that the five should appear before the judge first.

  1. The five are taken before Justice Mutungi at 9.30am. Mr. Nowrojee tells the judge what had happened before the Magistrate earlier. He said that the five had been held for more than 24 hours on a charge where they could only be held for a maximum 24 hours.

He said that section 72(3) of the Constitution provided that an arrested person, on allegations of having committed a non-capital offence could only be held for a maximum of 24 hours before charges were laid against him in court. By holding the accused for more than 24 hours, the police had committed an illegal act, which they could not be cure by the production of the accused person in court. Continued detention of the 5 was therefore illegal and unconstitutional and the five should be released immediately.

Justice Mutungi agreed. He found that a breach of law had been committed by the police. The police should have moved and charged the five before 24 hours were over. This was a land mark ruling restating the law and the Constitutional provisions. He added the 5 be released immediately.

  1. The telephone rang in Minister Ngilu’s office in Afya House at 12noon on Thursday 2nd August. It was answered by her secretary who was told by the caller that Mrs. Ngilu was required in the afternoon by the Director of Criminal Investigation Department at the CID HQ on Kiambu Road.

After returning to her office, Mrs Ngilu accompanied by Paul Mite went to the Director office and was told that a statement was required from her on what had happened at Central police station last Tuesday evening when she went there to see the five marchers. She was handed over to Deputy Director Mr. Amata to write a statement. Before she could start writing, she was joined by lawyer James Orengo and Wanyiri Kihoro who had received information that she had called there.

After the consultation with her three lawyers, Mrs Ngilu is advised that she could write the statement. She started doing so at about 3pm. As she did so her lawyers go to the CID canteen to take refreshment and return later. As the matter plays out, some civilian supporters and fans of Mrs Ngilu come to the gate of CID HQ. Soon disagreement ensues between them and the police on where to stay or not stay as they wait. 10 people are arrested and taken to Muthaiga Police Station.

  1. Mrs Ngilu finishes writing the statement, is joined by her lawyers, and soon indicates her intention to leave. She is told by Mr Amata that she could not leave. She asks if she was under arrest and Mr Amata answers her in the affirmative. The time was 6pm. The lawyer consult and advised Mrs Ngilu that she should prepare to go to court, first thing the following morning, as the arrest might be drawn out into the weekend when even the courts could not help her. Paul Muite and James Orengo leave soon after this to prepare the papers and she is left in the company of Mr Kihoro. They stay in Mr Amata’s office.

  1. Matters remain like this for the next 5 hours up to about 11 pm. Mr. Amata now said he had received new instructions that he could allow Mrs Ngilu to go home provided he bonded her to return the following morning at 9 am. She would then be taken to court and charged. So as to save time the following morning Mrs Ngilu was told, her fingerprints were to be taken before she went home. She was bonded for shs 100,000 with one surety of the same amount. Mr Kihoro now stood surety for her.

  1. It was now only 5 minute to midnight and Mrs Ngilu’s lawyer advised her to wait in Mr Amata’s office for the following day, which was only 5 minutes away. The bond and other paperwork were dated 3rd August 2007 and a new day had arrived. We then left Mr Amata’s office and walked to the gate.

  1. We soon separated and went to Orengo’s office where we finished preparing the papers to go to court in a few hours time. As soon as we did this we drove to Mrs Ngilu’s home at 2am when she swore an affidavit on the events of the day effectively authorising the lawyer to go to court on Friday morning.

  1. At 9am on Friday, Mrs Ngilu was back at the CID HQ. She was accompanied by her lawyers Paul Muite and Wanyiri Kihoro. One block away from the Deputy Director office, an attempt is made to prevent her lawyers from entering the building with her. This was resisted and the 2 lawyers entered the building at a brisk pace. When she entered Mr Amata’s office, he tell her that he was not ready and was awaiting instructions to be given from above on what to do next.

  1. Mrs Ngilu’s lawyers advised her not to wait for such as she had already waited for 10 hours the previous day under the same pretext. They tell her that the law does not provide that she could wait. The police alternatives were limited to they arresting her and charging her or letting her go away as the police sorted out what to do. Mrs Ngilu took the advice and we walked back

  1. Mrs Ngilu’s team went out of the building and her flagged car came and picked her and her lawyers. Before the car could drive out of the compound, it was stopped at the exit gate blocking the entrance. An impasse then ensued when Mrs Ngilu could neither leave nor go back. Her lawyer advised her and her flag car to stay put. Inside the gate there were many policemen in uniform and civilian clothes. On the outside many supporters and sympathisers of Mrs Ngilu now arrived and provided entertainment for themselves. Tony Gachoka paid a visit at this time, was arrested at the gate as he insisted on entering and was locked up.

  1. The 10 sympathisers of Mrs Ngilu who were arrested the day before were taken to Makadara Magistrates Court early on Friday morning and charged with creating a disturbance likely to cause a breach of the peace. They pleaded not guilty and were given Shs 20,000/= cash bail each.

  1. At 9am, and as the show played out at the gates of the CID HQ, James Orengo went to the High Court before Justice Mutungi, who soon ordered that the AG be served with application filed under a certificate of urgency. The most important prayer in the application was that a decision to charge or not charge Mrs Ngilu must be made by the AG, as opposed to the police, because of her status and rank as a cabinet minister in the Government.

The application was heard inter parties at 12 noon and Justice Mutungi granted the order sought and ordered that Mrs Ngilu be released in the meantime. The order was expected at the CID HQ in the afternoon. Before this could happen however, and I suspect fearing embarrassment of receiving the order, the CID relented. Mrs Ngilu was released at 2.45pm when the gate opened.

Tony Gachoka was soon released too at 3.30pm with no charges being laid against him, bringing to an end a most bizarre 100 hours in the life of the Minister and the marchers who dreamt freedom. Many swore to return.

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By Wanyiri Kihoro

P.o. Box 9759-00100

Nairobi

Tel: 0722 212 836