By Waringa Wahome, Advocate of the High Court of Kenya and coordinator of the Legal Empowerment Hub, Mathare Social Justice Centre.
In his inaugural lecture at Kabarak University, Prof. Justice Willy Mutunga, while reflecting on the 2010 constitution-making process, noted that one of the core issues was “whether the Kenyan elite could implement a progressive, social and democratic constitution, raising sharply the issue of the development of alternative political leadership.”
The democratic and civic space in Kenya is shrinking fast. We are witnessing a growing disregard for the rule of law and democracy in utter violation of the constitution of Kenya 2010. The criminal justice system, long critiqued for its intimidation and discrimination based on social and economic status, is now being weaponized to undermine political rights; specifically, the cornerstone of the people’s agency: their sovereignty.
Following the commemoration of the saba saba protest (7/7), which came as a continued pressure for the justice of Albert Ojwang who was killed whilst under police custody, and as a continuing demand to an end to abductions and police killings, the people of Kenya came out to defend their dignity and defend the life of one of their own who was killed for speaking out against political impunity. Kenyans witnessed a retrogressive and unconstitutional reaction by the state in the form of excessive use of force by police, murder of civilians and unlawful arrests and detention. On 17th June 2025, KNCHR recorded 22 casualties, including Boniface Kariuki who was shot at close range while selling masks during the Genz commemoration of June 25th protests, demanding justice for all those killed. On 8th July 2025, KNCHR reported 31 deaths, 107 injuries, 532 arrests and 2 enforced disappearances. Many more deaths and enforced disappearances remain unrecorded officially. In Nanyuki, the death of Julia Njoki has shocked and enraged the nation, she was assaulted and killed in police custody, just like Albert Ojwang.
As an advocate of the High Court, I have found myself confronting not only the law but also its abuse; in courtrooms, in police stations, and in the silences of state institutions. I share here my reflections from three cases that have deeply marked me, not only for what they demanded legally, but for what they revealed about power, systemic fear and brutality, and our urgent need to build an alternative political leadership that can foster the goodwill required for the judiciary to interpret the law in a way that upholds dignity and human rights.
On 2nd July 2025, under instructions from the Mathare Social Justice Centre and in collaboration with former detainee and advocate John Khaminwa, and other advocates instructed by the Law Society of Kenya, the Kenya National Commission on Human Rights, Amnesty International, and other human rights organizations, we represented three HRDs in MISC Application no E 535 OF 2025: Mark Amiani (Generali), John Mulingwa (Garang), and Mutunge Mwangi. They were abducted — not arrested — by the DCI. Five vehicles were used to follow and pick up each one of them. They were taken to Muthaiga Police Station under OB no 5/28/06/2025, and from there began a cruel game of ping-pong.
The three human rights defenders were unlawfully detained and held incommunicado; denied the right to bail and the right to speak to counsel, all rights of an arrested person which are protected by the Constitution of Kenya. The magistrate, in a further violation, took two days just to deliver a ruling that confirmed the police had no valid reason to deny them bail. Yet, she granted them an outrageous Ksh 200,000 bail per person and ordered them to report to the police station twice a week. For what? A three-minute check-in? It was torture masked as due process.
Then there was the case of Davis Tafari, a human rights defender and creative director with the Social Justice Travelling Theatre. His art is resistance. Through theatre, they tell stories of dignity, justice, and people’s struggles. Davis was arrested while following up on the release of young community members. Instead of assisting him, the DCI unlawfully detained him without informing him of the reasons for his arrest. He was coerced into writing a statement, then later accused of facilitating incitement, assault, and robbery with violence during protests.
The DCI unlawfully confiscated his phone and sowed fear among others, particularly those in WhatsApp groups — which suddenly became unsafe spaces. This wasn’t law enforcement. It was surveillance and intimidation. The goal was to silence Davis and isolate movement spaces from one another.
During the protests, people were busy in police stations and courts — and all the arrests made were unlawful. The judiciary is constitutionally mandated to interpret the law holistically. On the question of national security, Article 238 mandates the national security organs, including the DCI, to promote security in a manner that respects and upholds the rule of law, human rights, and democracy. The people being brought to court were young, unemployed, hungry. For the judiciary to sanction prolonged detention for such individuals is outright discrimination — a biased distortion of constitutional values.
Again, we are faced with that same core question: “Whether the Kenyan elite can implement a progressive, social and democratic constitution – raising sharply, the issue of the development of alternative political leadership.”
After the Saba Saba protests, we woke up to the news that our comrades had been arrested, Anthony Mwoki and a member of the Ecological Justice Network. They were detained at Huruma Police Station, although officially their custody was said to be under Pangani. Once again, the ping-pong game ensued. Advocates were left circling invisible authorities. The aim was clear: to keep them in custody without cause, delay access, and wear down resistance.
Eventually, a total of One Hundred and Twenty-Five Respondents (125), including our two comrades, were presented before the Makadara Law Courts under MISC Application No. E 1143 of 2025. The police requested fourteen more days to “investigate” charges of robbery with violence, assault, and destruction of property, all charges meant to intimidate and criminalize protest. The magistrate gave them two days. But even after the two-day window passed, they were not released. We had to reapply for bail. We pleaded for a personal bond, especially since it was clear these were young, unemployed people struggling for survival.
Yet, the magistrate issued a Ksh 5,000 cash bail and weekly reporting conditions. One of the young people called me, hurried and uncertain, and asked: “Imesemekana ni hiyo elfu tano ama?” he was asking, how long would one have to stay in remand if I can’t raise the five thousand?
You see, all judicial authority is derived from the people and vested in the judiciary. The courts, therefore, must interpret the law in ways that defend the people’s struggles and uphold the supremacy of the Constitution.
These cases speak to a deeper national crisis. The rule of law is being hollowed out. Democracy is being reduced to elections. The economy is collapsing. People are demanding food, jobs, land, and freedom. They are invoking the Constitution to make these demands; yet the very institutions that ought to protect them are turning against them. The judiciary should not attempt to reconcile irreconcilable questions. It must defend the people’s right to demand dignity. It must defend the rule of law.
One cannot ignore the urgent need for a justice system that serves the people. The routine violations by the police, the indifference from the judiciary and the disconnect from the legislature builds the need for collective insistence for:
- An end to judicial harassment
- An end to illegal detentions
- An end to malicious prosecution
- An end to police killings.
- For a public inquiry, in a national or international form, be conducted and those charged with the murder of civilians in a demand for dignity, be prosecuted and sentenced accordingly.
In conclusion, a new consciousness is rising. People are beginning to define what dignity looks like. They are tasting the power of their sovereignty. The critical questions of the economy are becoming sharper and clearer. Politics is shifting. What remains unclear is the shape of the alternative.
So what is this alternative political leadership that will guide us toward a socially just nation?
We must root ourselves in the growing consciousness that we deserve dignity. That we have the right to demand it. That our demands are constitutional — especially the demand for social justice and the implementation of Article 43. People must meet in assemblies, in their localities, to ask: What does alternative political leadership look like here? They must formulate their demands, organize around them, and follow them through.
I posit: that is how we begin building people- centred political leadership and using law as a tool for justice for all.
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