The constitution says that an arrested person must be produced before a judicial authority within a stipulated time period (say, 24 hours). The police adhere to this timeline, and before the 24 hours are up, they bring the arrested person before the judge and seek permission for continued custody. They cite various reasons: that the investigation is continuing, that the individual’s custody is required so that he may be “confronted” with other witnesses, that the individual might interfere with the evidence or intimidate witnesses if he is left free, and so on. Hanging above all this is the unarticulated premise that a judge should not interfere with the work of the police. If the price to be paid is the temporary deprivation of liberty (for a few days, a few weeks, or a few months), then that’s just how it is. The judge, therefore, should apply a light touch in remand proceedings, essentially acting as a slightly sentient rubber stamp, or a stenographer who sometimes asks a few clarificatory questions. Judicial scrutiny should be like breath on glass, as transient and as ineffectual.

That is a familiar story, one that has become so normalised that the grant of remand when the individual is first brought before a judicial authority by the police is taken as a matter of course. But sometimes we are reminded that it is not the only way that constitutionalism and criminal justice can work.

In Directorate of Criminal Investigations vs Calvince Okoth Otieno, three individuals were arrested on the 24th and 25th of March, 2023. On 27th March, the police applied to the court for ten-day custody, so that it could complete investigations with respect to offences of unlawful assembly, damage to property, robbery with violence, and so on. The police claimed that the arrested individuals belonged to an “informal group” called “Bunge la Mwananchi”, which was funded to cause damage to property and the breach of peace in Nairobi, with a view to destabilising the country (one may even say, a “larger conspiracy”, with due apologies to certain police forces!). The police further claimed that they had received credible information that the Bunge was planning further disorderly conduct, that there was a forensic report on the way, that not all witness statements had been recorded thus far, and that the arrested individuals might interfere with the investigation and intimidate witnesses if they were set at liberty.

Hon. M.A. Opondo—the Senior Principle Magistrate—refused the police’s request. She relied upon the judgment of the High Court of Kenya in Sudi Oscar Kipchumba vs Republic. In that case, Justice Joel Ngugi had held, in effect, that, at the first instance, the doctrine of proportionality must be applied to decide a police request for custody. Recall that the third prong of proportionality requires the state to demonstrate that a rights-infringing measure is the least restrictive alternative that is open to the state. Justice Ngugi had therefore laid down the following double test:

First, the State must persuade the Court that it is acting in absolute good faith and that the continued detention of the individual without a charge being preferred whether provisional or otherwise is inevitable due to existing exceptional circumstances;

Second, the State must demonstrate that the continued detention of the individual without charge is the least restrictive action it can take in balancing the quadruple interests present in a potential criminal trial: the rights of the arrested individual; the public interest, order and security; the needs to preserve the integrity of the administration of justice; and the interests of victims of crime where appropriate. By virtue of Articles 21(1) and 259 of the Constitution, the Court must act to aggrandize not diminish the personal liberties of arrested individuals in line with the other three interests. Differently put, the State must demonstrate that there are compelling reasons to deny pre-charge bail while balancing all factors within the complex permutation presented by these quadruple interests and without reifying or essentializing any.

In essence, therefore, three things follow from the double test. First, that the granting of custody is meant to be the exceptional case, and not the norm. Secondly, that the state bears the burden of showing that custody is the least restrictive option that is open to it; and thirdly, in the analysis, all other things being equal, the judiciary’s task is to expand liberty and not to diminish it.

Indeed, in the application of the standards to the case before him (which was a criminal revision application), Justice Ngugi went on to note that “the acontextual and simplistic pitting of “public order, peace and security” against the personal liberty interests and autonomy of the Applicant … is a dangerous anti-liberty ethos which was rejected by the Constitution of Kenya”. It was dangerous because, at the stage of remand, where nothing yet had been proven against an individual, this logic essentially exempted the state from its duty of maintaining law and order, and instead, placed it upon the shoulders of the accused individuals (by keeping them in further custody) (for a detailed analysis of the judgment, see this article by Joshua Malidzo Nyawa).

Of course, it is one thing for constitutional courts to lay down doctrine, and quite another for courts of the first instance to apply them to concrete cases. It is for this reason that the Hon. M.A. Opondo’s order becomes significant. Applying Justice Ngugi’s doctrine to the letter, she observed that the state had only asserted but  provided no evidence to substantiate its claim that the Bunge was being funded to spread disorder through Nairobi. Who were these funders? What were the Bunge’s activities? In other words, the moment that the state was asked for specifics—and not generalised, bare assertions—it failed to provide any. Hon. Opondo further observed that the state had claimed that it had “credible information” about the Bunge’s future activities, but had failed to provide the source of the same. While the Evidence Act immunised a police officer from revealing whence information came, it provided no such immunity when it came to the source. As far as the arguments on the forensic report and witness examination went, Hon. Opondo observed that the state had failed to show why it had not already completed this within the 48 hours that it had so far held the individuals in custody. And as far as intimidation of witnesses went, Hon. Opondo observed that, once again, the state had failed to provide specific claims to justify its fears or apprehensions, adding that it was doubtful whether, under the constitution, it was the police that had the power to judge an assembly unlawful.

It is one thing for constitutional courts to lay down doctrine, and quite another for courts of the first instance to apply them to concrete cases.

For these reasons, Hon. M.A. Opondo held that the state was essentially trying to turn the criminal process “on its head”, and that there was no warrant for the “extreme measure” of a further ten-day detention (to those of us in jurisdictions where ten-day remands are granted for the asking, this probably sounds like manna from heaven!).

When applied rigorously, the doctrine of proportionality achieves two things. First, it ensures that if less restrictive measures are available, the state is bound to use them first; and secondly, the form of analysis is such that it requires the state to justify its stand in specific terms. Through this remand judgment, we can see the power of the doctrine in the context of core personal liberty: not only was the state unable to demonstrate that continued detention was the “least restrictive alternative”, the moment it was asked to substantiate its justifications for custody with a degree of specificity, the claims fell apart.

The doctrine of Justice Ngugi and the approach of Hon. M.A. Opondo—when one thinks about it—should be the norm. The production of an accused individual before a judicial authority is the first occasion that a court has to adjudicate the claims of the state and the citizen; and what is at stake is the most basic of all rights—that of personal liberty. In such a situation, it makes eminent sense for the court to apply the doctrine of proportionality, and require the state to justify the need for continued custody; it is, after all, only such an approach that gives any meaning to the phrase, “One day of the deprivation of personal liberty is one day too many.” No doubt, the text of Article 49 of the Kenyan Constitution—which requires release on bail unless there are “compelling reasons” otherwise—makes such an approach easier to ground within the constitutional text. But ultimately, this is not so much about constitutional text as it is about judicial philosophy, and the approach of judges towards confronting state power and truly protecting the rights of individuals. The order of the Senior Principal Magistrate is an example par excellence of how courts can do just that.

It has been an interesting few weeks in Kenya; the recent weekly anti-government protests were getting more and more belligerent, and those in government increasingly perturbed by the goings-on. Most of all, the apparent confusion, tension, and disquiet exposed Kenya’s vulnerable underbelly: a society guided by a middle class that is aggressively ignorant yet aspiring to “success” defined by subservience to our lieges and to the Western gaze rather than initiative, creativity or industry.

I have previously written about “anxiety in the slave quarters” and being “lost in the darkness” in reference to Kenya’s current situation, both of which were linked by the common theme of ignorance, the most ominous threat to Kenyan society today, and the underlying driver of the unrest recently witnessed in the country. As a testament to this, many Kenyans across the political and social spectra have been advocating the need for “dialogue” or appealing to H.E. President William Ruto and Hon. Raila Odinga to “sit down and talk”. None of these vacuous pleas include even the smallest suggestion of what the two principals should talk about.

All conflicts—from private domestic feuds to international military conflagrations—occur around clear “bones of contention”, be they centred on issues or resources. These fundamentals necessarily form the basis of any dialogue or “treaties” that would lead to a cessation of hostilities. Therefore, by remaining vague about these “bones of contention”, what Kenyans are yearning for is for our “liege lords” to find some kind of solution to a problem that we have failed to articulate. This, in turn, will absolve us of responsibility for ourselves, our thought processes, and our behaviour.

Yet our behaviour remains wanting. For instance, we are less—if at all we are—concerned about the actual material losses incurred by common Kenyans during the recent disturbances; instead, we seem more interested in the “uncivilized” images exposed to the Western “white” gaze. There were paroxysms of veritable grief about images of pedigree Dorper sheep being stolen from the Kenyatta family farm and stones being thrown at the East Africa Spectre company because it would “scare away [foreign] investors” but none about the looting and destruction of Jamia Supermarket and other “black” local investors’ property in Kisumu and elsewhere.

Instead, the excitement over the visit of US senator Chris Coons shows just how desperate we are to burnish our image for the “white gaze”. The “peace” we seek (even as we ignorantly fan the flames of senseless chaos) has never included justice. The middle class just seek status for our respective lieges, so that we can each find an external reference point by which we can define our social status and hide our individual hollowness. We are loath to look at ourselves in the mirror and make decisions about what we support and why, what is good for us, our children, or our country.

History is replete with stories of populations subjected to all sorts of oppression by absolutist leaders, but rarely do we come across honest accounts of the “luxurious” (for lack of a better term) intellectual indolence of being a subject. Freedom and self-determination are highly-valued circumstances over which many wars have been fought and lives lost throughout recorded history, but they come with heavy intellectual work and decisions, from which those in servitude are completely excluded. Vassals, whether by choice or compulsion, do not bear the burden of making decisions, creating strategies, or being responsible for the same. For 60 or so years, Kenya has been a feudal society masquerading as a republic. We suddenly encountered a moment of reckoning last year when the general election results fractured the feudal order which had been creaking under the weight of its own decadence. One would wonder why the tribulations of nobles should agitate the commoners, but this is a factor of the social stratification in Kenya where the middle class largely defines their socio-political status relative to the fortunes of their respective political lieges.

For 60 or so years, Kenya has been a feudal society masquerading as a republic.

Consequently, when the Kenya Kwanza coalition led by Dr William Ruto won the general election, the Kenyan middle class were left confused. The majority of them were political vassals of lieges who coalesced into an unwieldy coalition whose focus was outweighed by entitlement. The middle-class demographic, which is notorious for voter apathy, suddenly found its voice in the protests against the results. Following the election petition hearings and the subsequent confirmation of the results, the protests immediately began, aimed at (valid) governance issues that had existed under the previous administration but hadn’t elicited that sort of response. Suddenly, we had people raucously expressing concern over the ethnicisation of government appointments, government expenditure, the veracity (or lack thereof) of government officials’ statements, foreign debt, economic performance, etc. All these issues are valid concerns, no doubt. However, even though the new administration’s performance has remained broadly below par, the administration has not been in office long enough to make its (positive or negative) mark.

So then, what is happening in Kenya? Is it simply the “noise” of a myopic society that failed to anticipate the outcome of events that took place in broad daylight? Foreign observers are also confounded by the current events because they have been consistently fooled by our “stage make-up”. Driven by our highly developed (Western-targeted) tourism industry and wary of the “white gaze”, our façade of functionality rarely cracks or fades. Even now that we have a “ceasefire” of sorts, it wasn’t as a result of any détente, because the protests themselves were not driven by any coherent negotiable targets. The ceasefire merely aims to satisfy the “white gaze”, especially in the person of US senator Chris Coons, who flew into the country on 29 March 2023 to instruct the feuding parties to stop. Sadly, neither side in this dispute really has any interest in addressing the substantive issues affecting common Kenyans.

Even the term “bipartisan engagement” that is now widely deployed by the ignorant middle class is borrowed from the US political lexicon, where it is used in reference to discussions in a system of two political parties with opposing views on an issue. In Kenya, this term is hardly applicable because we have two chimeras discussing the personal differences of their leaders because neither group has any distinct policies or ideologies against which differences can be drawn. We also shouldn’t overestimate our importance as a country because the US isn’t concerned about the petty parochial issues between Kenyan politicians. They are more concerned with the growing influence of China in Africa, especially the fact that their East African “bulwark” has at least a modicum of stability to show the Eastern world.

Sadly, neither side in this dispute really has any interest in addressing the substantive issues affecting common Kenyans.

Most remarkably, the “feudal contract” has been broken. Whether this has happened by commission, omission or accident is immaterial, but the thing we need to be worried about is how our leaders on both sides are employing the proletariat as a tool for the actualisation of their dreams. These politicians know that a young, hungry, and frustrated proletariat can be controlled and directed indefinitely through political rhetoric. The elite “bull buffaloes” are exposing each other’s vulnerabilities through relentless fights thinking that the masses watching them are doing so for entertainment, rather than waiting to dislodge them from their privileged economic and political thrones which they have enjoyed for decades.

In this process, the majority of Kenya’s middle class will soon find themselves politically adrift (if they aren’t already) due to their shallowness. In this instance, this is painfully apparent through their sudden raucous concern about the public “disorder” occasioned by the mass action against the systemic disorder in national governance and leadership which has existed since 2018 and to which they have been resolutely oblivious. They have internalized and mainstreamed the belief that their lieges are “sacred” and should be untouched by any of the challenges that bedevil our society because we are somehow “indebted” to them. For example, a senior newspaper editor, Mr Mutuma Mathiu, wrote a fawning op-ed article in the Sunday Nation of 2 April 2023, describing the late Jomo Kenyatta as “our north star during a time of great suffering”. He further compared Jomo to George Washington and the invasion of his family’s property to the desecration of a temple, firmly underscoring the depth of our intellectual malaise and deep-rooted spirit of worshipful subservience. The day after the Rubicon was crossed and properties belonging to lieges targeted, there was so much angst that the politician Mr Odinga visited the site of sheep theft with aides in tow in a strident display of outrage.  However, none of the opposition brigades saw it fit to visit Kibra, a poorer part of town where a church and a mosque were attacked during the riots, resulting in the deaths of two people.

We’re a society that has historically thrived on hiding our true identity behind shop-worn masks and mantras like “hakuna matata”. This article was inspired by the question those interested in Kenya are asking: “What’s happening in Kenya?” The short and simple answer is “Nothing at all”. Our masks just slipped off, and the world has now seen our faces.

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This article was first published by The Pan African Review.

Kenya’s President William Ruto, in a speech on Sunday, April 2, extended an olive branch to the opposition and urged them to hold off the following day’s “mother of all demonstrations” in Nairobi. Immediately, opposition leader Raila Odinga communicated in a speech that they would not hold demonstrations and heeded the government’s call for negotiations and talks within a constitutional framework.

For the previous three weeks, large demonstrations, sporadic protests, chaos, mayhem, lootings, police tear gas, and water cannons were familiar sights for the denizens of Nairobi, Kenya’s capital city and East Africa’s economic hub. This comes after Odinga, a former prime minister, and Kenya’s perennial opposition leader called for demonstrations on the rising cost of living, electoral malpractices during last year’s poll, and against the “illegitimate” and dysfunctional government of President Willian Ruto.

As a nation with a history of bloody post-election violence, Kenya risks descending into unprecedented political turmoil as the opposition remains steadfast in holding twice-weekly demonstrations. Already the violent counter-demonstrations and events, such as the burning of a mosque and a church in Kibera, the looting and vandalism of property belonging to former president Uhuru Kenyatta and Odinga, and police violence against journalists—all fanned by an atmosphere imbued with dangerous rhetoric and chest-thumping political discourses—raise serious concerns for the country.

Why is Kenya facing a political crisis again, seven months after a highly contested election process? Understanding the demonstrations requires a grasp of the political discourse of the election campaigns of August 2022. When then-president Uhuru Kenyatta politically side-lined his deputy William Ruto, endorsing and campaigning instead for the opposition candidate Odinga, a seismic shift occurred in the Kenyan political landscape. How could a president support the opposition candidate against his own party candidate? It was a first in Kenya.

However, this played into Ruto’s hands. As the elections approached, the economy hit rock bottom, inflation skyrocketed, and Kenya witnessed its highest rate of youth unemployment. I was conducting ethnographic fieldwork in Nairobi as a Ph.D. student at the time, and the frustration with the Kenyatta government was palpable. When Kenyatta left office he was so unpopular that his own political constituency voted en masse for Ruto.

More significantly, the elections of 2022 will be remembered for their “dynasties” and “hustlers” narratives. The then embattled Ruto successfully framed the elections as a contest of the haves and the have-nots—a class war between the poor masses and the detached super-rich. Ruto embellished himself as the candidate of the poor, a man who walked to school barefoot as a child and sold chicken on the roadside. His life story resonated with the majority of Kenyans. He claimed to be a simple hustler who was being sabotaged by the political dynasties of Kenyatta and Odinga—two scions of Kenya’s founding fathers.

In the end, Ruto won the elections by a slim margin; he had beaten the odds. The elections of 2022 were a “rebellion” of the poor against Kenya’s entrenched political dynasties and the culture of political bequeathing rampant amongst the elites. Moreover, the election results were contested in the Supreme Court which later upheld Ruto’s victory.

President Ruto came to power with the economy in tatters. In the run-up to the elections, he promised to reduce the cost of living immediately after taking power. Ironically, the government cut vital subsidies on fuel and other basic commodities worsening the country’s inflation. Fuel, which powers Kenya’s vibrant service industry and the private sector, increased exponentially. Today, the majority of Kenyans face increasing prices of fuel and electricity, and other basic commodities, such as maize flour, milk, water, and vegetables.

The current demonstrations are centered around this spiraling cost of living in Kenya. Moreover, droughts have wreaked havoc in the northern parts of the country where millions face starvation. More critically, the government is also facing unraveling security issues in the Northern Rift Valley region where bandits are terrorizing pastoralists with impunity.

President Ruto over-communicated and over-promised change and an abrupt economic transformation to the electorate. Seven months into his government the people have grown impatient and the opposition is capitalizing on this.

More importantly, since coming to power, the ruling United Democratic Alliance (UDA) has been on course to establish absolute hegemony in the political arena. To the chagrin of the opposition, many of its members have defected to the ruling party, which effectively makes parliament an organ of the executive. Moreover, the government has begun restructuring the independent election commission, despite the opposition shunning the process as one-sided.

Kenya’s opposition is politically cornered and battered. Gasping for political oxygen it has no option but to call for mass demonstrations. Odinga, the man Kenyans call Baba, is a veteran orchestrator of mass actions in Kenyan politics. Despite being in the opposition, when he speaks the political ground shakes. After five decades in opposition politics and losing five presidential elections, Odinga knows when the ground is fertile for mass action. Nevertheless, the recent rapprochement between the government and the opposition has eased anxieties in the country.

Kenya evaded the “mother of all demonstrations,” but only by a whisker.

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This post is from a partnership between Africa Is a Country and The Elephant. We will be publishing a series of posts from their site once a week.