• We are told by our local police station that boda boda riders have been guilty of purse snatching and other crimes in Muthaiga.
• Even if true, this seems like “profiling” boda boda riders.
Readers may have seen an item in the Star last week about a “security operation” in Muthaiga: “No motorbikes or pedestrians allowed through Muthaiga Road."
We had nothing to do with that item, though we admit to living in what the Star called “the posh area” — an alternative to that other phrase beloved of the media “leafy suburb”.
“Admit” because Yash Ghai still remembers that as a child, he would not have been able to live in Muthaiga because it was restricted to Europeans, and even the dogs seemed to be trained to bark at anyone of a different hue.
Until the late colonial period, urban areas were divided by race. And many readers may have heard grandparents recounting how they had to carry a kipande, a document (often to be carried around the neck in a metal case)) with personal details that any male African over 16 had to carry at all times.
The kipande system was closely connected to the restrictive employment laws. Kipande House in central Nairobi housed the office that issued vipande. And Kipande Road (beside which you will now find the Michuki Memorial Park) ends where an African trying to come into the city would have been barred if he could not show his kipande – indicating a good reason for coming in at all. It is just over 100 years since that system came into being.
This new limit on entry into Muthaiga was introduced without warning, and has created some inconvenience to residents. Suddenly no newspaper delivery. And, in Covid-19 time, delivery of groceries and medicines, usually by boda boda, was thrown into doubt. Even after a week, there was uncertainty over whether a local shop could arrange delivery or we would have to go shopping despite our policy of staying at home as much as possible.
ACCESS TO INFORMATION REQUEST
Bur this is not the nub of our concern. We have written to the police — relying on our constitutional right as Kenyans — asking for some details about the restrictions. We have asked for the legal basis — under what Act of Parliament, who has made the specific order that has been imposed and to what categories of individuals, using what form of transport, it applies.
We have also asked for the reasons for these steps, including what security events in Muthaiga may have led to the decision to impose these restrictions. It is unclear at this point at whose initiative all this is happening. And we have asked whether any public participation took place before these new restrictions were imposed. Why these questions?
We don’t have to tell the police why we want this information. Our right is to any information held by a public institution. They may refuse for some limited reasons, but it is for them to say why they will not provide it, not for us to say why we want it. But we can share our reasons with readers.
Our personal experience lies behind some of these questions. We walk around the roads in Muthaiga every day, and have not witnessed, nor heard of any misbehaviour by boda boda riders — though of course we are not privy to everything that happens there. But if there had been any public participation we would surely have been aware of it.
The first constitutional and human rights point is freedom of movement. As far as we know, the roads in Muthaiga are public roads. And Article 39 of the Constitution says, “Every person has the right to freedom of movement.” This right can be limited – like most rights.
In order to limit any right, there must be a law. In a situation like this, there must be an Act of Parliament that gives authority to the holder of some office to close roads. The law must be clear. And it must be only for a valid purpose – in the public interest.
And the limit on any right must be necessary – if some other way of achieving the purpose would involve less of a limitation of rights, that other method should be employed. In fact if the purpose did not justify the limitation of rights, then the limitation would not be accepted by a court. This is why we want to know the legal basis.
We also want to make the point that if people are going to be told, “You can’t do this or that” it ought to be clear why, and what the legal basis is. A few years ago, a simple sign appeared at the entrance to this “posh area” “No PSVs”.
Should not a sign like that indicate the legal authority? If you have been past State House, you will have seen signs saying no photography – and indicating the law under which this is done.
In Tanzania, notices about road regulations give the legal authority. This seems like an admirable practice. When you are arrested, the Constitution says you must be told why. Similarly if other official actions limit your rights you should understand why.
PRIVILEGE AND INEQUALITY
This story also underlines inequalities. We are told by our local police station that boda boda riders have been guilty of purse snatching or other crimes in Muthaiga. Even if true, this seems like 'profiling' boda boda riders. In London, and other big western cities, it is well known that the police are more likely to stop and search black people – sometimes worse, as the Black Lives Matter movement reminds us.
The police – no doubt not all – look at a black person and think 'potential criminal'. Here the authorities look at boda boda riders and think the same. In a time when many young men have turned to this way of earning a living, this seems particularly hard, and discriminatory.
And while Muthaiga is no longer a white preserve, it is hardly representative of Kenya’s population. So there is a trace of racism in the way this rule works, even if not in the way it is thought out. The Constitution includes the notion of 'indirect discrimination' — if the way a law works is in fact discriminatory against certain categories of people, that is on the face of it unconstitutional.
The Constitution does not specifically mention economic status as a prohibited basis for discrimination. But it is prohibited – all discrimination is unless for a good reason even if no such discrimination was intended. If you drive into Muthaiga in your own car, you won’t be stopped. And no doubt we would not, even if we walked in.
Muthaiga gets its roads tarmacked relatively frequently (if not terribly well). Recently some roads and corners have been edged with kerbstones. True, a few roads are not well maintained, but we are privileged in comparison with much of the city — over water and electricity, too.
Yet a fundamental value of the Constitution is equality. In fact, Article 10 mentions as national principles and values equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised.
Muthaiga police station sits at the junction of Mathare and what former Chief Justice Mutunga likes to call “Upper Mathare” – Muthaiga. It is hard to escape a suspicion that an important part of its functions is to keep Lower Mathare out of Upper Mathare.
We have been advised to register details of staff and pay Sh50 for a special card indicating why they need to come into Muthaiga. It feels as though the kipande is not entirely a thing of the past. The whole affair just underlines what an unequal society we live in, and how strong is the sense of government and its agencies that the people need to be controlled.
It also underlines how much the authorities simply do not 'get' what constitutionalism means. That it is no longer appropriate simply to issue orders without any clearly – or clearly explained – legal basis. Nor do they get what equality means.
Nor is it satisfactory for the police at different levels to be able to say merely “Orders from above”.