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KIRAITHE: Kenya secure before, during and after August 9

The anxiety has everything to do with collective awareness of the existence of endemic impunity largely caused by an unreliable criminal justice system.

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by ERIC KIRAITHE

Africa02 August 2022 - 10:33
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In Summary


  • Administration of our criminal justice system needs an urgent, informed and rational interrogation.
  • So far, credit goes to our national security services for adherence to the Constitution. The services have remained effectively non-partisan.
IEBC chairman Wafula Chebukati addresses the press after consultative talks with Inspector General of Police Hillary Mutyambai at the Office of the Inspector General of Police, July 29, 2022.

Elective political offices in Kenya have evolved into a haven where wealth, influence and impunity for self and associates are rapidly acquired and relatively insulated from the limits of criminal law. These positions have therefore attracted some of the most perverted personages.

Consequently, what should be conventional democratic competition is the cause of widespread insecurity. This five-year cycle has presented a daunting challenge as the country struggles to free itself from the shackles of extreme poverty and underdevelopment: The real enemies of Kenya. It is only natural that an array of corporate citizens, including the Church, has risen to advocate security as we go into the election on August 9.

In matters election and security two variables take centre stage: The law and state security machinery who are obligated to observe and enforce it. By any standards, the Constitution and our laws effectively underwrite free, fair and regular elections.

Article 238 of the Constitution explains national security as the protection against internal and external threats to rights, freedoms, property, peace, stability and prosperity of Kenya. Supporting the electoral commission to deliver free, fair and legitimate elections is therefore a constitutional responsibility for government security machinery.

So far, credit goes to our national security services for adherence to the Constitution. The services have remained effectively non-partisan. We have witnessed restraint as the services work to avoid a situation where their action could prejudice any political cause that is legitimate under the Constitution and the law.

Government security apparatus have consistently invested in planning security and placing early warning mechanisms to ensure that activity likely to prejudice security is detected and preventive action taken. This is prudent; it is of marginal value to arrest criminals after an election has been disrupted, citizens rendered destitute and or even lives lost.


Now that the law and security agencies are relatively adequate, what is the cause of the anxiety? The answer cannot be that some candidate must lose, this is a natural fact well known to all. My take is that the cause of anxiety has everything to do with collective awareness of the existence of endemic impunity largely caused by an unreliable criminal justice system.

This is a paradox because Kenya has one of the most progressive legal regimes globally supported by comparatively well-developed law enforcement and investigative agencies. Indeed, Kenya has a bemusing multiplicity of investigative agencies including Nema, Immigration, anti-corruption, national cohesion, IEBC, etc.

Unfortunately, security and investigative agencies are just the foundational layer in the criminal justice system whose walls, doors, windows and roofing are found elsewhere in the judiciary and the prosecution.

To say the least, administration of our criminal justice system needs an urgent, informed and rational interrogation. Whereas the greater opportunity lies beyond August 9, some introspection could do.

Justice Anthony Mrima’s lengthy judgment (Nairobi High Court Constitution Petition No E95 of 2021 delivered on May 23, 2022) quickly comes to mind—the infrastructure to adhere to this precedent judgment is simply absent in vast rural areas.Criminal law ideals conceived for sugar candy mountains must remain in theories of criminal law.

Those responsible for the criminal justice system must be told that the current beauty contest must end. Leadership in the system should actively work to leverage its synergies to deter criminals and strengthen security governance. Discourse on who enjoys which powers, privileges and immunities is grossly misplaced.

It is absolutely important that the reading of the law be informed by prevailing social, political and economic realities. Justice systems are obliged to contain criminals before paying attention to procedural decorum, important as it maybe.

All players need to rebuild public confidence that in Kenya criminals are swiftly punished. This is the only way to put the fear of criminal justice into politicians who plan, incite and facilitate political violence. The flip side is loss of trust in the system resulting in extra-legal ways of dealing with crime—the shortest route to a failed state.

In conclusion, Kenyans can confidently expect an election free from violence because the government has prepared and resourced state security agencies commendably.

However, in the intervening period and after August 9, administrators of the law should expand their focus to see the wider public interest so that their combined energies count to protect society from criminals and deter the criminally inclined.

Former Government Spokesperson

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