In Kenya, the rule of law applies equally to all citizens, but certain individuals enjoy legal protections that shield them from arbitrary arrest by ordinary police officers. These exceptions stem from constitutional provisions, international agreements, and specific statutory immunities. This article explores six categories of special people in Kenya who cannot be arrested without following extraordinary procedures, and the reasons behind these protections.
1. Diplomats and Foreign Envoys
Diplomats accredited to Kenya enjoy immunity from arrest and prosecution under international law, particularly the Vienna Convention on Diplomatic Relations. This includes:
- Ambassadors and High Commissioners: They can only be arrested if their home country waives immunity.
- International Organization Staff: Officials of bodies like the UN or AU are protected under the Privileges and Immunities Act.
Why? To ensure smooth diplomatic relations and protect foreign representatives from politically motivated arrests.
2. Individuals Granted Diplomatic Privileges (Controversial Cases)
Recently, the Gates Foundation was granted diplomatic-style immunity under a Host Country Agreement, though this was later suspended after public outcry and a High Court ruling. Such privileges would have shielded its staff from arrest for acts done in their official capacity.
Why? To attract international organizations, though critics argue it undermines accountability.
3. Sitting Presidents and Deputy Presidents
Under Article 143 of the Kenyan Constitution, the President and Deputy President cannot be arrested or prosecuted while in office. They can only be impeached or charged after leaving office.
Why? To prevent destabilization of the government and ensure continuity of leadership.
4. Judges and Magistrates
Judicial officers cannot be arrested for judicial decisions made in good faith. Arresting a judge requires approval from the Judicial Service Commission (JSC) and is only permissible for criminal acts unrelated to their duties.
Why? To safeguard judicial independence and prevent intimidation of the judiciary.
5. Persons with Specific Constitutional Protections
Certain individuals are protected under Article 49 of the Constitution, which limits arbitrary arrests. For example:
- MPs Facing Minor Charges: An MP cannot be remanded for offences punishable by a fine or less than six months’ imprisonment.
- Persons Released on Bail/Bond: Police cannot re-arrest them without court approval.
Why? To prevent abuse of power and ensure due process.
6. Individuals Under Protective Custody
Police may detain vulnerable persons (e.g., witnesses or suspects at risk of lynching) for their safety rather than arrest them.
Why? To balance justice with human rights protections.
Conclusion
While Kenya’s legal system emphasizes equality, these exceptions exist to uphold national interests, diplomatic norms, and constitutional safeguards. However, controversies—like the Gates Foundation case—show that such immunities to special people in Kenya must be carefully scrutinized to prevent abuse. Understanding these protections helps citizens navigate their rights and hold authorities accountable.
For more on arrest rights in Kenya, refer to Article 49 of the Constitution
Drop Your Comments, What do you think About The Article?