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The 4th Chapter of the Kenyan Constitution (2010) covers the Bill of Rights. Here is a section:
1) The Bill of Rights is an integral part of Kenya’s democratic state and is the framework for social, economic and cultural policies.This Bill of Rights echoes other human rights principles and canons that are universally accepted around the world, like for instance the Article 1 of the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms Adopted by General Assembly resolution 53/144 of Dec. 9, 1998 which says:
(2) The purpose of recognising and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realisation of the potential of all human beings.
(3) The rights and fundamental freedoms in the Bill of Rights --
(a) belong to each individual and are not granted by the State;
(b) do not exclude other rights and fundamental freedoms not in the Bill of Rights, but recognised or conferred by law, except to the extent that they are inconsistent with this Chapter; and
(c) are subject only to the limitations contemplated in this Constitution.
1) The Bill of Rights applies to all law and binds all State organs and all persons.
(2) Every person shall enjoy the rights and fundamental freedoms in the Bill of Rights to the greatest extent consistent with the nature of the right or fundamental freedom.
(1) It is a fundamental duty of the State and every State organ to observe, respect, protect, promote and fulfill the rights and fundamental freedoms in the Bill of Rights.
(2) The State shall take legislative, policy and other measures, including the setting of standards, to achieve the progressive realisation of the rights guaranteed under Article 43.
(3) All State organs and all public officers have the duty to address the needs of vulnerable groups within society, including women, older members of society, persons with disabilities, children, youth, members of minority or marginalised communities, and members of particular ethnic, religious or cultural communities.
(4) The State shall enact and implement legislation to fulfill its international obligations in respect of human rights and fundamental freedoms.
Everyone has the right, individually and in association with others, to promote and to strive for the protection and realization of human rights and fundamental freedoms at the national and international levels.It is in the above context that we should now look at the following accounts filed by Kenyan human rights defenders, activists and social media bloggers:
The first account is from Ms. Ruth Mumbi from Bunge la Wamama Mashinani:
Mumbi Ruth Mon, Mar 25, 2013 at 7:35 PM
Reply-To: kptj-communications@fahamu.org
To: kptj , IMLU
Cc: aloys@frontlinedefenders.org
Caroline Wangechi is a community human right defender and a member of Bunge la Wamama Mashinani in Kiamaiko village in Mathare.Caroline has been in the fore front of defending the rights of youth and women in mathare and during the recent campaigns together with Bunge la Wamama Mashinani members Rahma Wako, Victoria Atieno and myself were doing political education on voter education on voluntary basis just to sensitize the community essence of good leader.
Some of the aspirants were unhappy with the work. On 9th Feb 2013 Caroline was threatened by a brother to the TNA parliamentary aspirant George Wanjohi, who was a former councilor of kiamaiko ward which forms part of Mathare constituency. During his tenure, Kiamaiko experienced a lot of human rights violations, forceful evictions, grabbing of social and public amenities. The aspirant’s brother had warned Caroline that if his brother happens to lose the seat, she is going to face it rough. We reported the threats to huruma police station but since then nothing has happened.
One week ago a lady campaigner of the MP claims to have been assaulted by unknown people but we were shocked yesterday 23/03/2013 when she came with civilian police men at Caroline’s house and claimed that it was Caroline who had assaulted her. Caroline was arrested and taken to Huruma police station where I’m informed by Caroline that complainer was accompanied by the MPs sister who was bragging that they have managed to catch the big fish and that the others will now shut up (tumeshika big fish, wengine watanyamaza).
The Kiamaiko community did manage to raise a cash bail of ksh5000 and Caroline was released. She will be arraigned in court on Tuesday and where she is being charged with assault.
Due to this Bunge La Wamama Mashinani is kindly requesting for solidarity when she is being arraigned in court Tuesday 26/3/2013 at Makadara law courts.
We as Bunge la Wamama Mashinani we feel that Caroline’s freedom of thought, conscience, speech and expression is being threatened and curtailed.
The Mathare parliamentary results is still challenged in court of law waiting the decision of court and if the court rules we go for a by election they are using crude ways silencing defenders thought and conscience.
Ruth Mumbi
Bunge La Wamama Mashinani 0713 888 736
The second story is contained in this email social justice activist Sakwa Makanda:
From: Franks
Subject: Police on spot over Extrajudicial killings in mathare
To: "Mumbi Ruth"
Date: Friday, March 22, 2013, 12:15 PM
Police on spot over Extrajudicial killings in mathare
Resident of mathare 3c woke up to a shocking news this morning after it emerged that police brutally opened fire killing an elderly man well known to the resident as Asman near his residential gate.
The deceased who is "mandazi" vendor was sprayed
with atleast 6 bullets and died on the spot.the strayed bullets penetrated into nearby shanties seriously injuring a man and his wife who were sleeping at around 10 pm.the two were taken to Kenyatta national hospital by the perpetrators.
The dramatic night shot out scared the residents away who only come out to find the dead body lying in a pool of blood. They identified the killers as 9 plain heavily armed police officers, some well known to the resident of mathare. The officers then took the body immediately in a police land rover.
The incident is happening few day after two other people died in cold bloods in the same fate. The mathare 3c area has been lately experiencing volatile violence during, pre and post electioneering period. Despite several condemnation from the members of public and grassroots human right defenders the police are still resorting into extrajudicial killing as a way of enforcing law and order in mathare slum which contradict the fundamental human rights.
The angry resident of mathare slums are now appealing for an immediate investigation and prosecution of the perpetrators attached to huruma police station.
Francis Sakwa
Social justice activist
0724706222
Sakwa.makanda@gmail.com
Samuel Doe
Mathare residents
0714905280
Samuelouna4425@yahoo.com
The third excerpt is drawn from an article published on the Ghafla! online platform:
Robert Alai Summoned To CID HQ Over His TweetsThe final quote is from Kenyan independent film maker Roy Ogola's Facebook update:
Controversial blogger and tech-writer Robert Alai was this morning summoned to the CID headquarters on Kiambu road for questioning. This comes after the blogger made “grave” allegations via his Twitter handle that the police felt contravened the law.
In the tweets, Alai alleged that Justice Lenaola (one of the six Supreme Court judges hearing the CORD petition) was meeting some of the plaintiffs in the case and tagged Chief Justice Willy Mutunga in the tweet. Here is the series of the tweets;
"Why is Justice Lenaola meeting litigants? @WMutunga” Mar 24, 2013
"Isaack Hassan also has joined Kimemia and Lenaola at the club.” Mar 24, 2013
"Francis Kimemia and Justice Lenaola now meeting at a private members’ only club in Karen.” Mar 24, 2013
By the time this article went up, the controversial blogger was headed to Milimani Court to face charges. Alai was in the company of Norman Magaya, ODM Youth 2012 chairman.
Journalist Bogonko Bosire advised the blogger to go defend the tweets if indeed they are true, if not apologize. “My word to Alai as I always say, being summoned is okay, if what you wrote is True go defend it, if it is not apologize, but being summoned to defend yourself is a great chance for you to prove what you said is true........We must always be ready to defend what we say and write, Social media should always exercise the highest standards of commitment to Truth.....Go tell the truth if it’s true and again Apologize if it’s not....That is my take,” posted Bogonko.
@RobertAlai's Charge: Posting annoying TWEET/MESSAGE on TWITTER contrary to Section 29(b) of Kenya Information & Communication Act CAP 411A Laws of Kenya!Fortunately, Alai is now out on bail as you can see from this link.
Separately but on a related note, there have been some disturbing media reports of the Head of Civil Service and the Inspector General of Police together with the country's security chiefs deigning to "ban" rallies, protests and other public gatherings.
Here is a report from the Standard newspaper:
Top security organ warns Raila against holding rallies
By Cyrus Ombati
Nairobi, Kenya: Kenya’s top security organ has told Prime Minister Raila Odinga and Vice President Kalonzo Musyoka to suspend planned countrywide rallies as they could trigger violence.
The National Security Advisory Committee also upheld a ban on political meetings.
The National Security and Advisory Committee (NSAC) said the public meetings were unwarranted and could trigger animosity and violence.
The committee, which is chaired by head of civil service Francis Kimemia met on Wednesday evening and declared they will not allow the meetings to continue as planned.
The meeting came after the leaders of the Coalition for Reforms and Democracy announced they planned to hold a series of rallies on Saturday and Sunday.
Members of NSAC include Kimemia, Inspector General of Police David Kimaiyo, Permanent Secretaries Mutea Iringo, Thuita Mwangi, Nancy Kirui, National Intelligence Service Director General Michael Gichangi, Attorney General Githu Muigai and Kimaiyo’s deputies Grace Kaindi and Samuel Arachi.
Raila, Musyoka and Bungoma Senator-elect Moses Wetangula had planned to hold a rally in Kakamega on Saturday.
Kimemia, later explained Wednesday's security meeting was convened to deliberate Raila's recent claims that he had won the presidential elections.
He said the meeting upheld a directive by Kimaiyo that banned mass actions, demonstrations and political gatherings.
"Such meetings could obsolete gains made from the peaceful conduct of elections which demonstrated to the world that Kenya’s democracy had matured and investors were already releasing investment capital," said Kimemia.
Kimemia said all parties have been banned from holding political meetings.
Kimaiyo said they are trying to reach the CORD leaders directly and diplomatically to implore on them to drop the planned rallies for a while.The Nation basically echoed this account.
The committee also directed police to disperse crowds that usually gather outside the Supreme Court in the city saying there are illegal.
But the move can be legally challenged because the Constitution and in particular the Bill of Rights allows freedom of speech and assembly.
The groups usually meet outside Nakumatt Supermarket and KICC to discuss general political and current issues. They have been meeting there for more than a year now.
"We took issue with idle, noisy mobs congregating outside Supreme Court of Kenya and KICC buildings as they have become a public nuisance and disrupting Court processes and business operations around the area.
"This will be disallowed since strategic buildings were under security surveillance and such mobs are a security threat and should be advised to disperse with immediate effect," Kimemia said.
NSAC urged Raila to let the Judges of the Supreme Court to rule on the presidential petition he had files protesting the results of the March 4 election.
"Court process should be left to those authorised into courts. Any attempts to disrupt, discredit or intimidate the Courts, IEBC or other institutions of the State will not be tolerated," said the statement by NSAC.
The PM has filed a petition at the Supreme Court challenging Independent Electoral and Boundaries Commission’s declaration that Uhuru Kenyatta won the presidential election.
On March 9, IEBC declared Kenyatta winner of the presidential election with 6.1 million votes against Raila’s 5.3 million.
What is happening in Kenya around the erosion of civil liberties is causing a furore even in advanced democracies like Canada, the United Kingdom and the United States of America.
A piece in the Canadian Lawyer delves into this matter:
While freedom of speech and the right to organize politically are recognized human rights, the sphere of operation for those who do not agree with governments is shrinking both at home and abroad.And from the United States, Z Magazine informs us:
In Canada, gone are the days of being able to oppose one’s government without the fear of being silenced. Lawful demonstrations during the G-20 summit in 2010 resulted in a rash of arrests, as well as unlawful “kettling” of innocent citizens participating in the event. The Canadian International Development Agency failed to renew development contracts for NGOs that disagreed with particular policies. The Canada Revenue Agency will remove an organization’s status as a charity if it deems its work to be political.
Most recently, the criminalization of dissent has been noted in Canada’s counter-terrorism strategy unveiled by Minister of Public Safety Vic Toews in 2011. In “Building Resilience Against Terrorism,” under the main heading “The Terrorist Threat,” the strategy document lists environmentalism and anti-capitalism as examples of “domestic issue-based extremism.”
So, how did we get here? According to Roch Tassé, national co-ordinator of the International Civil Liberties Monitoring Group who has been carefully tracking the change in attitude of the federal government through various reports and initiatives, it is clear there is now a greater alignment between government and corporations. The focus on economic growth is their common interest.
The federal government, in particular, has been engaged in a disciplined communications strategy whereby it constantly and consistently messages to Canadians that economic interests, meaning economic growth, are the same as national interests. The language of post-Sept. 11 anti-terrorism legislation created to counter terrorist activities that threatened our national interests is now being used to allow government police agencies to spy on those who speak against corporate interests, particularly in relation to the extractive industries.
In other countries, Canadian NGOs are witnessing even more aggressive tactics being used against human rights defenders. They have heard stories of people whose governments have turned their backs on them, allowed their rivers to become polluted, allowed their children to become ill, and have no interest in their well-being. And when an individual has the temerity to complain and then organize her community to demand change, she is targeted to be silenced. It is not unusual for human rights defenders to be killed, for their families to be threatened, and for both family and community members to be in conflict with them.
Physical violence used to be the norm and is still not unusual. However, more recently, and especially because many human rights defenders are women and there is greater media documentation, the tactics have become more subtle. In a recent talk, Lolita Chavez, co-ordinator of the K’iche People’s Counsel, an indigenous human rights defender from Guatemala, spoke about how the law is used to wear people down, outside of the eye of the cameras, by creating false claims which must be answered and require money activists don’t have. It also take their time, which is then diverted from the community organizing essential to fight the corporations causing damage in their communities.
In some cases their families turn against them, and in others the rest of the community will distance themselves from the complainant. In effect, they are terrorized and suffer great psychological distress. Chavez said her people have a saying for this tactic: “taking the water away from the fish.”
The hand-in-glove relationship between the Canadian government and Canadian mining companies should cause concern in relation to the hardships we are creating, particularly in Latin America where indigenous peoples are rightly confounded by our desire to harm them when we are a rich country and live miles away. They worry, and rightly so, that their future and integrated understanding of reality is simply standing in the way of the North’s need to consume. Because they voice their disagreement both individually and in association with others, they are labelled criminals, justifying all the harsh treatment the state can throw at them.
In contrast to the North American and Latin American shifts towards the criminalization of dissent, the 2008 European Union guidelines for the protection of human rights defenders calls upon its missions to be active in monitoring, reporting, and assessing situations, as well as supporting and protecting human rights defenders. The guidelines describe the various ways its different operational arms can and should promote respect for human rights defenders in relations with third countries and in multilateral fora, support Special Procedures on the UN Human Rights Council, including the Special Rapporteur on Human Rights Defenders, and provide practical support for human rights defenders including through development policy.
The criminalization of dissent is so serious that in 2000 the United Nations decided to create a special rapporteur on the situation of human rights defenders. For more information about this topic you may be interested in reading the 2011 Special Rapporteur’s Commentary to the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms.
Criminalization of Dissent And Militarism Of The Police
January 2012
By Bill Quigley
Bill Quigley's ZSpace Page
The Obama administration has affirmed, continued, and expanded almost all of the draconian domestic civil liberties intrusions pioneered under the Bush administration. Here are 19 examples of serious assaults on the domestic rights to freedom of speech, freedom of assembly, freedom of association, the right to privacy, the right to a fair trial, freedom of religion, and freedom of conscience that have occurred since the Obama administration has assumed power.
1. PATRIOT Act. On May 27, 2011, President Obama, over widespread bipartisan objections, approved a Congressional four-year extension of controversial parts of the Act that were set to expire. In March 2010, Obama signed a similar extension for one year. These provisions allow the government, with permission from a special secret court, to seize records without the owner’s knowledge, conduct secret surveillance of suspicious people who have no known ties to terrorist groups, and obtain secret roving wiretaps on people.
2. Criminalization of Dissent, Militarizing the Police. Anyone who has gone to a peace or justice protest in recent years has seen that local police have been turned into SWAT teams and SWAT teams into heavily armored military with shields, shin guards, heavy vests, military helmets, visors, and vastly increased firepower. Protest police sport ninja turtle-like outfits and are accompanied by helicopters and special tanks. Even sound-blasting vehicles and wireless fingerprint scanners first used by troops in Iraq are now being utilized by local police departments to check motorists. Facial recognition software introduced in war zones is now being used in Arizona and other jurisdictions. Drones like the ones used in Kosovo, Iraq, and Afghanistan are being used along the Mexican and Canadian borders.
3. Wiretaps. Wiretaps for oral, electronic, or wire communications, approved by federal and state courts, are at an all-time high. Wiretaps in year 2010 were up 34 percent from 2009, according to the Administrative Office of the U.S. Courts.
4. Criminalization of Speech. Muslims in the U.S. have been targeted by Obama’s Department of Justice for inflammatory things they said or published on the Internet. First Amendment protection of freedom of speech stated in a 1969 Supreme Court decision, Brandenberg v Ohio, says the government cannot punish inflammatory speech even if it advocates violence unless it is likely to incite or produce such action. The DOJ indicted a Pakistani resident living legally in the U.S. in September 2011 for uploading a video on YouTube. The DOJ said the video was supportive of terrorists even though nothing on the video called for violence. In July 2011, the DOJ indicted a former Penn State student for going onto websites, suggesting targets and providing a link to an explosives course already posted on the Internet.
5. Domestic Government Spying. In activities that offend freedom of religion, freedom of speech, and several other laws, the NYPD and the CIA have partnered to conduct intelligence operations against Muslim communities in New York and elsewhere. The CIA, which is prohibited from spying on Americans, has worked with the police on “human mapping,” commonly known as racial and religious profiling, to spy on the Muslim community. Under the Obama administration, the Associated Press reported in August 2011, informants known as “mosque crawlers,” monitor sermons, bookstores, and cafes.
6. Top Secret America. In July 2010, the Washington Post released “Top Secret America,” a series of articles detailing the results of a two-year investigation into the expanding world of homeland security, intelligence, and counter-terrorism. It found that 1,271 government organizations and 1,931 private companies work on counterterrorism, homeland security, and intelligence at about 10,000 locations across the U.S. Every day, the National Security Agency intercepts and stores more than 1.7 billion emails, phone calls, and other types of communication. The FBI has a secret database, Guardian, that contains reports of suspicious activities filed from federal, state, and local law enforcement. According to the Washington Post, Guardian contained 161,948 files as of December 2009. From that database there have been 103 full investigations and at least 5 arrests, the FBI reported.
7. Other Domestic Spying. There are at least 72 fusion centers across the U.S. that collect local domestic police information and merge it into multi-jurisdictional intelligence centers, according to a report by the ACLU. These centers share information from federal, state, and local law enforcement—and some private companies—to secretly spy on Americans.
8. Abusive FBI Intelligence Operations. The Electronic Frontier Foundation documented thousands of violations of the law by FBI intelligence operations from 2001 to 2008 and estimate that there are over 4,000 such violations each year. President Obama issued an executive order to strengthen the Intelligence Oversight Board, an agency which is supposed to make sure the FBI, CIA and other spy agencies are following the law. No other changes have been noticed.
9. Wikileaks. The publication of U.S. diplomatic cables by Wikileaks, and then by mainstream news outlets, sparked condemnation from Obama administration officials who said the publication of accurate government documents was an attack on the United States. The Attorney General announced a criminal investigation and promised, “This is not saber rattling.” Government officials warned State Department employees not to download the publicly-available documents. A State Department official warned students that discussing Wikileaks or linking documents to social networking sites could jeopardize their chances of getting a government job. The Obama administration continues to try to find ways to prosecute the publishers of Wikileaks.
10. Censorship of Books by the CIA. In 2011, the CIA demanded extensive cuts from a memoir by former FBI agent Ali H. Soufan, in part because it made the agency look bad. Soufan’s book detailed the use of torture on captured prisoners and mistakes that led to 9/11. A 2011 book on interrogation methods by former CIA agent Glenn Carle was subjected to extensive black outs. The CIA under the Obama administration continues its push for censorship.
11. Blocking Publication of Photos. In May 2009, President Obama reversed his position and refused to release photos of U.S. soldiers abusing prisoners. In April 2009, the Department of Defense had told a federal court that it would release the photos, which were part of nearly 200 criminal investigations into abuses by soldiers.
12. Technological Spying. The Bay Area Transit System in August 2011, hearing rumors of protests against fatal shootings by the police, shut down cell service in four stations. Western companies sell email surveillance software to repressive regimes in China, Libya, and Syria to use against protestors and human rights activists. Surveillance cameras monitor residents in high crime areas, on street corners, and at government buildings. Police department computers ask for and receive daily lists from utility companies with addresses and names of home addresses in their area. Computers in police cars scan every license plate of every car they drive by. The Obama administration has made no serious effort to cut back these new technologies.
13. Use of State Secrets to Shield Government from Review. When the Bush administration was caught hiring private planes from a Boeing subsidiary to transport people for torture to other countries, Bush successfully asked the federal trial court to dismiss a case by detainees tortured because having a trial would disclose “state secrets” and threaten national security. When Obama was elected, the state secrets defense was reaffirmed before a federal appeals court. It continues to be a mainstay of the Obama administration’s effort to cloak their actions in secrecy.
14. Material Support. The Obama administration successfully asked the U.S. Supreme Court to allow the government to criminalize humanitarian aid and legal activities of people providing advice or support to foreign organizations that are on the government list of terrorist organizations. The material support law can now be used to penalize people who provide humanitarian aid or human rights advocacy. The Obama administration Solicitor General argued to the court “When you help Hezbollah build homes, you are also helping Hezbollah build bombs.” The Court agreed with the Obama argument that national security trumps free speech in these circumstances.
15. Chicago Anti-War Grand Jury Investigation. In September 2010, FBI agents raided the homes of seven peace activists in Chicago, Minneapolis, and Grand Rapids, seizing computers, cell phones, passports, and records. More than 20 anti-war activists were issued federal grand jury subpoenas and more were questioned across the country. Some of those targeted were members of local labor unions and others were members of organizations like the Arab American Action Network, the Colombia Action Network, and the Twin Cities Anti-War Campaign, Many were active internationally and visited resistance groups in Colombia and Palestine. Subpoenas directed people to bring anything related to trips to Colombia, Palestine, Jordan, Syria, Israel, or the Middle East. In 2011, the home of a Los Angeles activist was raided and he was questioned about his connections with the September 2010 activists. All of these investigations have been directed by the Obama administration.
16. Punishing Whistleblowers. The Obama administration has prosecuted five whistleblowers under the Espionage Act, more than all other Administrations. He charged a National Security Agency advisor with ten felonies under the Espionage Act for telling the press that government eavesdroppers were wasting hundreds of millions of dollars on misguided and failed projects. After their case collapsed, the government, which was chastised by the federal judge as engaging in unconscionable conduct, allowed him to plead to a misdemeanor and walk. The Admin-istration also prosecuted former members of the CIA, the State Department, and the FBI. They even tried to subpoena a journalist and one of the lawyers for the whistleblowers.
17. Bradley Manning. Army private Bradley Manning is accused of leaking thousands of government documents to Wikileaks. These documents expose untold numbers of lies by U.S. government officials, killing of innocent civilians, policies to ignore torture in Iraq, information about who is held at Guantanamo, cover ups of drone strikes, abuse of children, and much more damaging information about U.S. malfeasance. Though Daniel Ellsberg and other whistleblowers say Bradley is an American hero, the U.S. government has jailed him and is threatening him with charges of espionage, which may be punished by the death penalty. For months Manning was held in solitary confinement and forced by guards to sleep naked. When asked about how Manning was being held, President Obama personally defended the conditions of his confinement, saying he had been assured they were meeting basic standards.
18. Solitary Confinement. At least 20,000 people are in solitary confinement in U.S. jails and prisons, some estimate several times that many. Despite the fact that federal, state and local prisons and jails do not report actual numbers, academic research estimates tens of thousands are kept in cells for 23 to 24 hours a day in supermax units, lockdown, security housing units, “the hole,” and special management units or administrative segregation.
Human Rights Watch reports that one-third to one-half of the prisoners in solitary are likely mentally ill. In May 2006, the UN Committee on Torture concluded that the United States should “review the regimen imposed on detainees in supermax prisons, in particular, the practice of prolonged isolation.” The Obama administration has taken no steps to cut back on the use of solitary confinement in federal, state or local jails and prisons.
19. Special Administrative Measures. Special Administrative Measures (SAMS) are harsh conditions of confinement imposed on prisoners (including pre-trial detainees) by the Attorney General. The U.S. Bureau of Prisons imposes restrictions on such segregation and isolation from other prisoners and limitation or denial of contact with the outside world such as: no visitors except attorneys, no contact with news media, no use of the phone, no correspondence, no contact with family, no communication with guards, 24-hour video surveillance and monitoring. The DOJ admitted that several dozen prisoners, including pre-trial detainees, mostly Muslims, were kept incommunicado under SAMS.
These concrete examples document a sustained assault on domestic civil liberties in the United States under the Obama administration. Rhetoric aside, how different has Obama been from Bush in this area? Bill Quigley is a human rights lawyer and law professor at Loyola University New Orleans. He works with the Center for Constitutional Rights.
The following cartoon illustrates the arguments in the Z magazine article:
Electronic Intifada gives us this story from the United Kingdom:
“We are very angry, very afraid, very sad, very upset. My wife, she is depressed. When she sees police in the street she’s very frightened. They destroyed our life,” says Badi Tebani.
In January 2009, Tebani’s teenage son Yahia was one of tens of thousands of people who joined demonstrations in London against the Israeli bombing of Gaza. At one of those demonstrations Yahia and many others were “kettled” — surrounded by a police cordon and slowly let out in return for giving their names and addresses and for being filmed.
That was the last Yahia knew of it until the following April, when the family home was raided by 20 to 30 police at 5am. The front door was forced open and Badi Tebani and his family were ordered to lie on the floor. His four sons were all handcuffed. Three police officers knelt on the back of Hamza, 23. He was sleeping in shorts, but they refused to let him put on any clothes, even though they’d opened the windows, letting in the cold. Computers, mobile phones and clothes were all taken and the family car was broken into. Badi and Hamza described how police played games on the boys’ iPhones and made themselves coffee in the kitchen.
According to Badi, it was worse than anything he experienced back in Algeria. Badi is an Algerian who came to the UK seeking political asylum from the violence between the government and military and the political opposition which left 200,000 dead during the 1990s. He has taught here ever since.
The entire family was shocked when they discovered that it was Yahia the police were after. “He is a student at university, he has never has been in prison or in trouble with the police,” says Badi Tebani. “He’s always had a good character, good behavior.”
Yahia was later charged with violent disorder, an offense which carries a jail term of up to five years. He says that during the demonstration he took a chair from a nearby Starbucks to sit on, but police alleged that the cafe was trashed and the furniture used as weapons. Yahia was advised that if he pleaded guilty to the charge he would get community service, so he followed his lawyer’s advice. He didn’t know that most of the protesters who did the same were being sent straight to jail, so he was shocked when a friend was handed a two-year sentence. Yahia is now serving a one-year prison term.
“It’s a very big shock,” says Badi Tebani. “I visited Yahia during the week. He is the kind of person where you don’t know what he is thinking, but I know he is very, very sad, very upset. He will lose a year at university. His friend was sentenced to two years, he just took a stick in his hand for a few minutes, he didn’t throw it, he didn’t do anything. Another, he was sentenced to a year just because he went on the demonstration — he’s 16, he’s at college doing his A levels. They all fear the future because with a criminal record, it’s difficult to find a job.”
“They can’t say our boys are criminals,” continues Tebani. “They demonstrated to support people in Gaza. All the world knows what happened there, how many people were killed, how many houses destroyed. I think the real criminal is Israel. If any judge in the world needs to judge anyone, he needs to judge those responsible in Israel. People tried to help, to stop the catastrophe in Gaza, to ask the British government to stop the war. But the government sends them to jail.”
According to figures collated by Joanna Gilmore of Manchester University, Yahia Tebani is one of 119 individuals arrested at or after the demonstrations. The youngest person arrested was 12, although the average age was 18 or 19. Almost all of the demonstrators charged with violent disorder were Muslim, despite the mixed nature of the protests, which were supported by majority-white organizations like the Campaign for Nuclear Disarmament as well as by Islamic groups.
At least 22 persons have been given custodial sentences, with terms of up to 30 months. Most of these have come from Judge Denniss at Isleworth Crown Court in West London, who has made it clear that he is imposing “deterrent” sentences. A 15-year-old boy was given a non-custodial sentence which involves a curfew and an electronic tag, while a Palestinian who only days earlier had seen images in the newspapers of dead relatives in Gaza was given a two-year jail term.
According to Gilmore, the number of arrests and sentences resulting from the Gaza protests are far greater than those from much larger and more violent anti-war and anti-capitalist demonstrations which have taken place in London.
Lawyer Matt Foot, who is acting for several of the protesters, agrees. “The dawn raids were an extreme measure,” he says. “It’s the first time I’ve come across it on a large scale in recent times for this kind of offense. It was used in the 1980s for the miners’ strike, and in smaller numbers for an anti-Bush demonstration.”
Foot also says he believes that too many people were arrested in the first place, and then that demonstrators were “over-charged” in relation to their actual actions. “At the anti-Bush demonstration, very few people got convicted of violent disorder and if they did they got non-custodial sentences, the judge certainly didn’t talk about deterrent sentences then.” He acknowledges that Islamophobia could have played a part in the decision to arrest and charge so many people with such serious offenses.
“That’s one of the differences with the anti-Bush protests,” Foot adds. “Very few white people were charged in the end. It’s not necessarily the judge’s fault — I think they were over-charged, too many people were charged and I think the courts have then seen 60 people coming through on violent disorder and reacted in a certain way. I think the mischief comes from too many people being arrested and then being over-charged.”
Joanna Berridge of the Gaza Demonstrators Support Campaign fears that the British authorities are using the Gaza protests as an “easy target” to suppress political demonstrations more widely, playing on widespread Islamophobia to set legal precedents which can then be used against other protesters. “It’s first about political policing of protest, with the Islamophobia feeding into it,” she claims.
Foot also points to a lack of coordination between the different cases as having resulted in badly-advised guilty pleas. According to Joanna Berridge, the Islamic Human Rights Commission and a few individual activists distributed information on lawyers and protesters’ legal rights at the demonstrations, but it seems that many of the organizations who called for the protests didn’t follow suit. This, coupled with the fact that many of the arrests happened up to eight months after the protests, meant that many defendants have ended up with duty solicitors from their local police stations, rather than lawyers with specialized knowledge of defending protesters.
“In comparison with the G20 protests, the demographic of the protesters is very different,” says Berridge. “People from movements like Climate Camp knew how to protect themselves, whereas for a lot of the guys on the Gaza demos, it was a spontaneous thing. It was the first march many of them had been on, so they didn’t know their rights. The deterrent sentences have mainly been handed out to people who pleaded guilty, while the majority of those with more legal know-how, who have been involved in protests before, have had their cases thrown out before they even got to court, or been found not guilty.”
The Gaza Demonstrators Support Campaign has responded to the need for better legal knowledge amongst Palestine solidarity campaigners by organizing legal observer trainings. They are also offering practical support, such as translation and refreshments, to the defendants and their families at court, and fundraising for families who have lost breadwinners to jail terms.
A second campaign, run by the Stop The War Coalition, has collected more than 1,500 signatures on a petition against the sentences. Jeremy Corbyn, Labor MP for Islington North, called some of the sentences “extraordinary and out of all proportion to the crimes committed.” The campaign also tabled a parliamentary question on the policing of the protests, which also attracted 55 complaints to the Metropolitan Police and the Independent Police Complaints Commission. A number of these were dropped because the ID numbers on officers’ uniforms had been covered up.
As Matt Foot puts it, “The judges hand down these deterrent sentences and it’s about real people’s lives. They say, ‘these are people of good character’ and then start locking up young people who just care about what’s happening in Palestine, the whole thing becomes hideous.”
“I think the result of these cases on a larger scale will impact heavily on future rights to protest,” emphasizes Joanna Berridge. “It’s really important that these boys don’t get used as an example, because this will stay on their record for years. They were protesting about something as widely recognized as war crimes against Gaza. That’s not been taken into account but it should really be focused on, that these brave and conscious young people were going out and taking a stand and are having their lives ruined as a result.”
Sarah Irving is a freelance writer from Manchester, UK. She worked with the International Solidarity Movement in the occupied West Bank in 2001-02 and with Olive Co-op, promoting fair trade Palestinian products and solidarity visits, in 2004-06. She now writes full-time on a range of issues, including Palestine, “http://www.sarahirving.net,” Her first book, Gaza: Beneath the Bombs, co-authored with Sharyn Lock, was published in January 2010.
The resurgence of state intimidation, police harassment, arbitrary arrests,lobbing of tear gas, firing of live bullets, rounding up of activists and even extra judicial killings is CHILLING.
It reminds me of the dark days of the long night of Moi KANU one party fascist dictatorship.
Many of the teenagers and early twentysomething facebookers and twentysomething twittering twits babbling, yammering and jabbering gibberish endorsing these draconian, illegal and unconstitutional state terror tactics had NOT EVEN BEEN CONCEIVED back in the day when it was considered OK for the cops to storm a private residence and arrest four family members discussing the news headlines when having their ugali na sukuma for supper because they were allegedly having a "night meeting" because they did not bother to secure a police licence.
I am particularly offended by the clamour to reintroduce repression in Kenya at this point in time.
For two reasons.
One, Kenyans are living under a new constitutional dispensation. That new order signifies a transition from the terrible National Security State to the more alluring National Democratic State, in other words, a move from FASCISM to DEMOCRATIC RENEWAL.
Why would, for instance public officers like Mr. Kimemia and Mr. Kimaiyo who have SWORN to DEFEND the Constitution flagrantly violate the Bill of Rights?
Two, and this is rather PERSONAL as far as I am concerned.
On August 4, 1982, while I was still a first year University of Nairobi student, I was abducted by the police at the Voi Railway Station and returned forcibly under gun point, to be charged with three counts of "sedition" liable up to 27 years imprisonment, BASED SOLELY on the basis of a hand written DRAFT of an essay where I was calling upon Kenyan youth and students to stand up for democracy, justice and freedom. On the basis of those trumped up charges, a hastily convened KANGAROO court sentenced me to several years behind bars at the notorious Kamiti Maximum Security Prison. I was tortured, beaten, humiliated and alienated. My youth was stolen from me. My education was interrupted. I became blacklisted when I left prison. I was shunned. I was forced to flee from my homeland Kenya and exiled to a very frigid continent tens of thousands of miles away where I vegetated for close twenty years!
And for what?
For drafting a student essay touching on issues of fundamental rights like freedom of expression, freedom of conscience, freedom of assembly, academic freedom and other civil and political liberties.
Onyango Oloo and hundreds of Kenyan patriots like, to name just a few, Dr. Willy Mutunga, Raila Odinga, Alamin Mazrui, Timothy Njoya, Davinder Lamba, Ngugi wa Thiongo, Micere Mugo, Wangui wa Goro, Wangari Muriuki, Chitechi Osundwa, Adongo Ogony, Oduor Ongwen, Zarina Patel, Yusuf Hassan, Abdilatif Abdalla, Njeri Kabeberi, Paddy Onyango Sumba, Mwandawiro Mghanga, Oyange Mbajah, Silvanus Oduor, Omondi Kabir and many, many, more, paid with our health, our families, our minds, our limbs, our careers, yes, some with their very lives to topple the fascist dictatorship and contribute to the emerging democratic space which is best exemplified by the promulgation of the Kenyan Constitution on August 27, 2010.
Where we the Kimemias and Kimaiyos back then?
Undergoing a DO course at the Kenya Institute of Administration or going through the recruit's training drills at the Police College in Kiganjo?
As I said in a recent piece:
Thirty years ago, Willy Mutunga was a detainee at Kamiti. Today he is Kenya’s Chief Justice. In 1982, Raila Odinga was just beginning his 8 year stint behind bars. Today he is the Prime Minister and has run for President three times. In the eighties my home was a tiny cell where I was a political prisoner on 24 hour special watch. Momoima Onyonka the assistant foreign minister was once locked up in D Block along with Philip Murgor, the former DPP, Kibisu Kabatesi, Mudavadi’s close advisor, Adongo Ogony the former Secretary General of SONU, now a much respected human rights activist, community worker and blogger based in Toronto, Canada.
No one should try anything funny and stupid, I muttered to myself. And I meant those dark forces of impunity who think they own Kenya who refer to themselves rather arrogantly as “Government.”
Kenyans have been to prison and back; have wasted away in exile limbo; endured tear gas, rungus and even live bullets; the streets of Kenya are soaked with the blood of patriots who died fighting for a democratic constitution, for a new Kenya.
Let nobody in a police uniform or a suit from a Harambee Avenue office try to scatter those Kenyans congregating at 20th Century or Jeevanjee; let no one be foolish enough to try to turn back the hands of time.
We have sacrificed too much for this country to let all those gains go up in smoke, because of a bonfire lit to tickle the vanity of myopic personal careers and vendettas.
I am primarily a social justice activist who uses my talent as a poet, writer and blogger to SPEAK TRUTH TO POWER.
Let me end by reproducing one of the poems I wrote in solidarity with some HIV+ women on the eve of International Women's Day in the year 2005:
Sunday, March 06, 2005
Poet as the Embodiment of some Ukimwi carrying Kenyan Women in Mombasa
(poem composed by onyango oloo at the invitation of a group of hiv positive women living in mombasa who requested a poetic message to be read out during a special international women's day event to be held in the kenyan coastal city for this year- 2005...)
they have tried to bury us alive
with indifference, neglect, stigma and silence
but we are still alive, we the women of kenya
living positively with this ukimwi that we all fear
they have tried to discard us in the dustbins of societal isolation
dump us in the mitaros of societal marginalization
but we are still alive, still kicking and struggling
we the women of kenya living positively
with these killer virusi, surviving this deadly mdudu
in the western part of our beautiful neo-colonized country
they call it ayaki, ayaki is the monster that raids our bodies
and saps, or tries to sap our strength
oh, how this ogre, this monster is feared
and we are still alive, even as the ayaki tries to yako us
and we are still alive, we the women of kenya
living positively with this ukimwi that we all fear
struggling defiantly with this condition that terrifies us all
we are like the brave warrior sister nyaitwika from central kenya
who courageously faced the enemies of her people
staring down death, brushing off danger
saying, come and get me o you vile foe
and we are still alive, we the women of kenya
living positively with this immune depressing robber of immunity
we are still alive, fighting on, hanging on for another day
we are in an unequal battle, and our soldiers sometimes fall valiantly
in fierce combat with the cowardly robber who ravishes our essential essence
by whittling down our bodies
sometimes we get sick, sometimes we despair and very often we die
but for our children, we keep hanging on
fighting for as long as we can to stay alive
we the women of kenya living positively with this ukimwi that we all fear
on the occasion of international women's day two thousand and five
here is our message to our fellow kenyans, our fellow sisters and our fellow human beings
we are still alive, we the women of kenya living in mombasa, malindi, kilifi
lamu, takaungu, voi, wundanyi, mazeras, mariakani, kaloleni, bura, ukunda and all over pwani, we are still alive we the women of kenya living all over kenya
we need your solidarity and your concrete support
we embrace your love and your affection
we welcome your concern and your care
but we can certainly do without your pity
we can certainly do without your patronizing and your matronizing
we are not statues of udongo about to break into pieces at the slightest touch
we laugh, we cry, we eat, we sleep, we work, we play, we love, we fall out of love and back again
we are women just like other women
we are human beings just like other human beings
we care about freedom, we care about democracy, we care about justice, we care about equality
when one of our sisters is raped, we shake with indignation
when one of our aunties is violently attacked we too seek redress and even vengeance
we have men in our lives whom we love and who love us back
and when we are with them we do what other women do with their men
our lives including our love lives did not end the day we found out about the unwelcome guests who had taken over our bodies
so we still love, but we love ever so safely, ever so carefully
for if you love, you cannot purposely harm the one that you love
for if you love, you cannot deliberately maim that one that you adore
if we sat here and told you all our love stories, it would never end
and that is why in closing, we say to all the women of kenya and women of the world:
for international women's day two thousand and five
let all the women of kenya come together in sisterhood and solidarity
to support each other, irrespective of hiv status
let us not allow medical walls to separate us
we are all the grand-daughters of me katilili
we are all the nieces of wangari maathai sisters of zarina patel and cousins of micere mugo
today we say with our late spanish sister la pasionaria dolores ibaruri:
no pasaran!
no pasaran to those who block access to better health for kenyan women!
no pasaran!
no pasaran to those who hate women and their children
no pasaran!
no pasaran to those who demonize and vilify women fighting for equality
no pasaran to those who are enemies of democracy for kenyan women and kenyan men
today we say with graca machel, frelimo and the people of mozambique:
a lutta continua
today we say with winnie mandela and the people of south africa:
amandla nga wethu!
today we say with assata shakur and the african-american women of the states:
no justice, no peace!
today we say with rigoberta menchu and the people of guatemala:
el pueblo unido jamás será vencido
today we say with vandana shiva and the women of india:
mother earth and all her seeds and resources belong to the wretched of the earth!
today we say with hanan ashrawi and the people of falastin:
sexists and misogynists: yalla yalla, get out of our lives
let us push our kenyan intifada until ultimate victory for all wananchi- especially women and their children
today we say with zap mama and all progressive musicians and artists:
it is never too late to work for a new world!
© 2005 Onyango Oloo
Montreal
Onyango Oloo
Wednesday, March 27, 2013
posted by Kenya Democracy Project @ 7:31 AM
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