The County Government of Nairobi detained an unknown number of cattle belonging to Maasai herders on Friday according to the Deputy Governor Polycarp Igathe.
“Enforcing the Nairobi City bylaws. Animals impounded today at Woodley Estate heading to Ngong Road. One herder arrested and awaiting arraignment in court,” Tweeted the Deputy Governor.
This is not the first time the county has been impounding the animals. The County Inspectorate team has carried operations in Westlands, Lang’ata, and Mombasa road leading to arrests of herders who have been grazing in the city without ‘grazing permits’.
The problem, the county doesn’t know what to do with the animals.
“If found guilty, what do you recommend we do with the impounded cows? Asked the Igathe.
Enforcing the Nairobi City bylaws. Animals impounded today at Woodley Estate heading to Ngong Road. One herder arrested & awaiting arraignment in court.
If found guilty, what do you recommend we do with the impounded cows? pic.twitter.com/OU48tFlx5d
— Polycarp Igathe (@IgathePolycarp) January 12, 2018
This infuriated the Kenyan online community.
Sura Mbaya in response said, “In my simplistic mind, the cows did no wrong. You will need to ferry them back to the owner’s boma, charge the owner and follow the law in prosecuting him. Also, kindly do the same with boda bodas and matatus that flout the law but when you impound the vehicles, scrap them.”
He added “That said, this only addresses the underlying problem of drought that has ravaged the pastureland where the Maasai graze their cattle. It might help to work with community elders and Kajiado leaders to put up boreholes and coral the animals until the rains come.”
Sandrah Njoki, on the other hand, said “Deputy Governor, that Herder has no idea about bylaws & blah blah, all he knows is his cows needed fodder in this dry season. He is feeling aggrieved and mistreated as at now and jailing him or impounding his cows is not a rectification measure. His community will rise up in anger.”
Kymoitye, “Make sure if he’s found guilty feed his cows till the day he will be released.”
Adam Jillo, “Returns the cows to owner (family). It’s their sole source of living. Maybe we need to educate them on the by-laws of the county. Release the herder with a clear warning.”
To the Kenyan public, it should be noted that with the promulgation of the Constitution of Kenya, 2010 it set in motion the commencement of radical changes in the governance of the country.
These changes included the introduction of a comprehensive and transformative Bill of Rights and a devolved system of government.
In 2012, Parliament enacted the County Governments Act and the Transition to Devolved Government Act, which respectively, repealed and replaced the Local Government Act, and provided a mechanism for the transfer of functions of local governments to the county governments.
“However, this has not been the case. County governments have not revised the by-laws to ensure their enforcement respect and preserve the dignity and self-worth of the human person.
Consequently, the implementation of county by-laws has subjected citizens, residents, and visitors who find themselves with the province of these laws, many of whom are unaware of their rights, to unparalleled human rights abuses,” says Steve Ogolla A Nairobi Lawyer.
Human Rights Report 2014 published by the Kenyan Section of International Commission of Jurists investigated the implementation of County by-laws in Nakuru and Nairobi Counties.
The report found out that common abuses include denial of the right to fair trial; assault and mistreatment during arrest and detention; false arrest; unfair sentencing practices; irregular fines; extortion; profiling and discrimination; and unfair bail terms.
As per the findings, there exists a massive and irreconcilable conflict between the by-laws and national legislations. The by-laws prohibit and prescribe penalties for conducts otherwise allowable under national laws.
There is lack of creativity on the part of judicial officers in the manner in which they handle cases relating to breach of by-laws. This is compounded by the disharmony between the two bodies of law and the national and county levels.
The result is that several persons are apparently in prison for wrongful convictions or serving custodial sentences for petty offences that are better punished using non-custodial means as provided for under penal laws and the Constitution.
The expansive reach of these by-laws contracts the space for meaningful engagement in economic activities and disrupts the livelihoods of ordinary people.
To address this concerns, the Report advanced three broad levels of recommendations.
First, County governments need to review licensing policies to avoid punishing day to day activities of citizens that my not ideally call for licensing.
Inextricably linked to licensing, is the need to review the legal framework to ensure declassification of some petty offences and the use of non-custodial sentences.
Secondly, there is need for training of county law enforcement officials on arrest procedures that respect human rights and the Constitution.
Thirdly, the by-laws should be widely published and publicized. There should be deliberate efforts to popularize simpler versions to the general population.