The High Court of Kenya has issued conservatory orders restraining the Senate of Kenya and the National Assembly of Kenya from directing the arrest or detention of Governors and County officials.
The orders arise from a petition filed by Advocate and human rights defender Charles Mugane, who has challenged the Senate’s directive instructing the Inspector General of Police and the National Police Service to arrest Governors who failed to appear before Senate committees.
In the petition, Mugane argues that the Senate, alongside the National Assembly, the Inspector General of Police, the National Police Service, and the Attorney General of Kenya, violated multiple provisions of the Constitution, including those safeguarding the rule of law, fair administrative action, access to justice, and institutional independence.
According to the petitioner, the Senate acted unconstitutionally by directing arrests despite unresolved concerns raised by Governors regarding alleged unethical conduct by certain members of the Senate committee. These issues, he contends, should have been addressed before compelling attendance. Mugane further argues that neither house of Parliament has constitutional authority to enforce attendance through arrests. He maintains that such directives are “ex facie unconstitutional” as they undermine the independence of the police service as guaranteed under the Constitution of Kenya 2010.
The petition also asserts that the actions threaten the principles of devolution, compromise the dignity of public officers, and are intended to intimidate and unlawfully curtail the liberty of elected Governors. It claims the threatened arrests violate fundamental rights, including the rights to dignity, liberty, security of the person, fair hearing, and fair administrative action.
The court was told that the directives have already created uncertainty and tension within county governments, potentially disrupting service delivery and the functioning of devolved units.
The petition references the arrest of the Samburu County Governor at Senate premises, describing it as forceful, abrupt, and lacking procedural fairness. The incident allegedly instilled fear among other Governors and is cited as evidence of abuse of power and interference with lawful county functions.
Sitting at Kiambu, Justice Bahati Mwamuye issued orders restraining the Senate and the National Assembly—whether acting directly or through their agents or multi-agency frameworks—from summoning, arresting, or detaining Governors, County officials, or associated persons in relation to such directives pending further determination of the case.
