How organisations can handle State interference in course of their work

Security personnel patrol the streets of Nairobi. Failure by an organisation to have protocols to deal with the overweening power of the State may have disastrous consequences. FILE PHOTO | JEFF ANGOTE 

By Ngugi Mwenda

In Summary

• An organisation may wish to retain external legal counsel.

Monica is an exceptionally strong woman. She works for an organisation that rehabilitates victims of torture. Her clients are mostly Somali refugees, with a sprinkling of Ethiopians, Rwandese and Congolese.

Daily, she listens to the retelling of rapes, mutilations, murders, separations, disappearances and other horrendous acts that accompany war. It is a wonder that the inhumanity has not overwhelmed her.

On a cold morning, while her upmarket colleagues buy coffee at Java House, Monica opened her clinic in a dog-eared part of Nairobi­ – she tries to open on time to avoid upsetting her client’s scheduled expectations: one never knows what may bring on a psychological crisis.

As usual, her clients filed into her cramped therapy room for a group session. She hungrily scanned their faces to detect any improvement. Despite knowing better, Monica holds out for hope.

It was, however, the usual story: the nightmares are back, the feeling of being trapped, the desire to be elsewhere, nostalgia, uncertain future, low self esteem, depression, powerlessness and despondence. The malaise filled the room of persons stripped of their dignity by the inhumane acts of powerful others.

Disturbingly, since the influx of Western dignitaries to Nairobi in November put the State on high alert, Monica’s clients had been reporting an upsurge in police encounters. There had been stops in the streets, night raids and hours spent in police stations.

Those worst off were the undocumented. These most vulnerable were falling off the grid. Monica could only watch helplessly as wounds she thought scabbed-over actually cracked, revealing past trauma simmering underneath.

While Monica was scaring up devices to recapture the lost progress, the receptionist interrupted the session. The police were at the door. They knew she had undocumented foreigners she was hiding, they said.

Monica asked them for a search warrant. They threatened her with arrest for obstructing police work.

Monica called the organisation’s head office, which is ensconced in a leafy suburb of an opulent corner of Nairobi. Her bosses scrambled to send emails to their supervisors abroad. In the meantime Monica was left without guidance. She was helpless. She stood aside and the police entered, violated her clinic and took away her vulnerable clients.

Legally, the right not to have the State breach an office is based on the right to privacy. Article 31 of the Constitution guarantees the right not to have your property searched. However, this right is subject to certain limitations.

First, the State can obtain a search warrant in the course of investigations to search your office. Before a court can issue a search warrant it must satisfy itself that there are reasonable grounds to suggest criminal activity. That is, credible suspicion.

Secondly, the police have the right, if they consider that the delay in obtaining a warrant will defeat their urgent objective, to breach the premises without a warrant. The officer in charge of the station is only required to record in writing why the search could not wait for warrants.

Monica believes that her clinic was targeted simply because the majority of her clients were from a certain community. She is worried on the knock-on effect the raid has on the organisation’s ability to protect her vulnerable clients.

Given their fear of the State, it was unlikely that they would want to come to her clinic in future. Her employer, on the other hand, quickly buckled. It did not want to be seen as antagonising the State’s efforts to fight terrorism. She was instructed not to take on any more undocumented clients.

• An organisation may wish to retain external legal counsel.

Failure by an organisation to have protocols to deal with the overweening power of the State may have disastrous consequences.

Monica, for example, was afraid to take a stand because there were no established procedures to deal with policing authorities. She dared not place herself in the line of fire in such a fluid situation.

There are at least three ways that an organisation can deal with this scenario.

The first is establishing procedures to deal with interactions with policing authorities. This may call for a legal audit to establish the peculiar needs of the organisation, followed by sensitisation of the employees on how to act.

This is the least responsive mechanism as written procedures cannot envisage every situation.

The second it to hire in house legal counsel, allowing for a human resource to deal with situations in an ad hoc manner.

Lastly an organisation may wish to retain external legal counsel. Such an arrangement would act as a buffer between the organisation and the policing authority.

This is similar to outsourcing the risk. For example in the above situation, independent counsel would have been in a position to ask the right questions and quickly.

The police would be hard pressed to charge retained counsel with obstruction given the safeguards provided to the legal profession.

Therefore, the spirit and the letter of the law is more likely to be followed, which is better for all parties.

Mwenda is the managing partner at Mwenda & Tanui, email: mwenda@mtadvocates.co.ke