WILLY MUTUNGA: About that matter of thuggery at Bomas of Kenya

The thuggery was the work of some elected politicians, their goons, and hired guns.

In Summary

•Ambassadors from foreign missions witnessed this shameful and criminal episode.

•I have been told by reliable sources that the personal assistant to the Chair of IEBC was assaulted.

A screen grab of the chaos at Bomas of Kenya.
ELECTION 2022: A screen grab of the chaos at Bomas of Kenya.
Image: COURTESY

Voices in the Wilderness

We all saw it on TV. It was captured on camera and beamed all over the world by the media. Social media disseminated footage of it.

The thuggery was the work of some elected politicians, their goons, and hired guns.

It is rumoured that both coalitions of the political parties, AZIMIO and KENYA KWANZA, had their respective militia there but it's the militia and thugs of the former coalition that caught the attention of most viewers.

Chairs were thrown at people, one senator-elect was seen hitting people with a club.

Two women leaders both elected to positions of Governor and women’s representative were, according to the evidence of reliable witnesses, involved in this thuggery.

Religious leaders at Bomas were witnesses. Some of them were shielded from harm by the Chair and some Commissioners of the Independent and Boundaries Electoral Commission (IEBC).

Ambassadors from foreign missions witnessed this shameful and criminal episode.

I have been told by reliable sources that the personal assistant to the Chair of IEBC was assaulted. Indeed, the Chair was slapped.

It is alleged that the thuggery was to stop the Chair from announcing the results of the Presidential elections. Without a doubt, there is strong evidence from credible witnesses of what happened at Bomas. I will come to this thuggery later.

Electoral Violence

History records electoral violence in our country since independence.

None was as serious as the post-election violence of 2007-8. It has been estimated that 1,311 people died.

Women were raped. Men were circumcised. Families were evicted from the Rift Valley, and their lands and properties were grabbed.

All in all, it was estimated that the value of properties destroyed was over Sh300 billion. Indeed, there was ethnic cleansing in Kenya. Those who did not see the exhibition called “Kenya Burning” should see it for the gory details of that post-election violence.

When political parties, in violation of the decrees of the Constitution, organize politics on the basis of divisions elections that are too close to call the winner resulting in violence.

Indeed, alliances among the barons of the Big Five (communities, not animals) have only resulted in a free, fair, peaceful, and credible election in 2002 when the late President Kibaki was supported by four of the Big Five while sharing the votes of the fifth community, his own, with Uhuru Kenyatta his opponent.

President Kibaki garnered over 67% of the presidential electoral vote. An alliance such as the one that delivered the presidency to Kibaki in 2002 is not subjected to rigging because everyone knows the numbers speak louder than words.

Sadly, the Big Five have not had the intelligence to rotate the presidency which could have given the ruling class in Kenya some stability.

The cartels that control and enslave them do not seem to suggest this to the barons/compradors.

It has become clear that the alliances are based on money, a lot of it, changing hands. Kenyan politics is monetized and extremely corrupt. That is why Kenyans have always called the handshake between Uhuru and Raila, the handshake that brought about an alliance between a faction of the ruling and the opposition, the “handcheque.”

It is alleged with some visible evidence that Ruto’s war chest for the election was in billions. This helped him mobilize and organize support for his coalition while funding all politicians who were running under his coalition’s ticket.

Raila had his own cartels to fund him and it is alleged that our resources, held in trust for us by the government, found their way to support his campaign.

Kenyans call this “deep state.” This opaque and undemocratic political creature is not homogeneous because of politics of division. All the barons have their “people” in the “deep state” reporting to them and the importance of national interest is lost.

The Need to Criminally Prosecute the People Involved in the Thuggery at Bomas of Kenya

The Director of Public Prosecutions (DPP) has powers under Article 157 of the Constitution  to “institute and undertake criminal proceedings before any court.”

S/he has the mandatory power “to direct the Inspector-General of the National Police Service to investigate any information or allegation of criminal conduct.” 

S/he “shall not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his or her powers or functions shall not be under the direction or control of any person or authority.”

S/he “shall have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of legal process.”

At the time of writing this article, I have no information that the DPP has acted on the thuggery at the Bomas of Kenya by starting the process of investigation.

Clearly, the thuggery was a behaviour likely to cause a breach of peace. There is evidence of common assaults, and assaults occasioning actual bodily harm. And there was malicious damage to property. All these allegations need to be investigated and the DPP may decide to prosecute the suspects in any criminal court.

There is always a likelihood of the DPP deciding not to prosecute. In that event, the sovereignty of citizens to privately prosecute the suspects cannot be denied.

Under Article 157, the DPP can take over such private prosecution but “with the permission of the person or authority.”

All sovereign power belongs to the people of Kenya and citizens undertaking private prosecution are strongly advised not to permit the takeover of their prosecution by the DPP.

The power that the DPP has is a delegated authority and Kenyans can exercise that power directly in the case of private prosecution.

If no public or private prosecution ensues then we are accomplices to the subversion of the Constitution, to the aiding and abetting of the alleged crimes, and to giving other citizens absolute immunity to spark off violence and instability in the country.

We must breathe life into these constitutional provisions that give us power as citizens to privately prosecute our compatriots for alleged crimes.

In a nutshell that is what citizens’ power is all about. We must be accountable for our responsibilities and duties as citizens under our progressive and transformative 2010 Constitution.

* Willy Mutunga, Chief Justice & President of the Supreme Court, 2011-2016.

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