Maraga’s Arrest Signals Kenya’s Shrinking Space for Dissent

By Risper Atieno

Kenya has long distinguished itself as one of East Africa’s most open democracies. Compared to many of its neighbors, it boasts a progressive constitution, a vibrant civil society, an independent media ecosystem, and a history of competitive elections.

Recent events, however, suggest that these democratic credentials are increasingly under strain. The arrest of former Chief Justice David Maraga on June 8, 2026, during a protest against the excision of public land inside Nairobi National Park near the Bomas of Kenya, has become another troubling indicator that constitutional freedoms are gradually being eroded.

At the heart of the issue lies Article 37 of the Constitution of Kenya, which guarantees that “every person has the right, peaceably and unarmed, to assemble, to demonstrate, to picket, and to present petitions to public authorities.” Article 33 further protects freedom of expression. On paper, these provisions place Kenya among the most progressive constitutional democracies on the continent.

The events of June 8, however, raise serious questions about whether those rights are being respected in practice.

Maraga was reportedly arrested while heading to present a petition to the Kenya Wildlife Service and participating in a sit-in outside Nairobi National Park. International media reports indicated that protesters were demonstrating against the planned excision of land allegedly earmarked for the construction of a parking facility adjacent to the Bomas of Kenya conference complex. No violence by protesters was reported. Yet riot police dispersed demonstrators and arrested at least nine people, including the former Chief Justice.

What was more concerning was the absence of a publicly stated legal basis for Maraga’s arrest. When a former head of the Judiciary can be detained while exercising rights expressly protected by the Constitution, it raises uncomfortable questions about the state of civic freedoms in Kenya today.

This incident fits within a broader pattern observed during protests across June and July 2024/2025. Reports by oversight and human rights bodies documented repeated allegations of excessive force by law enforcement officers. According to findings released during that period, dozens of civilians were killed and hundreds injured during demonstrations. Investigators noted that many victims suffered injuries to the head, neck, and chest, areas where the use of force is most likely to result in severe injury or death.

Independent forensic analyses also documented cases in which victims were reportedly shot while fleeing, suggesting they posed no immediate threat at the time force was used. Separate incidents, including deaths in police custody and shootings of unarmed civilians during demonstrations, further intensified public concern about police conduct and accountability.

What Maraga’s arrest appears to put across is that the definition of what constitutes a “peaceful protest” is now being determined by security agencies rather than by the Constitution itself. Presenting a petition, carrying placards, and participating in a peaceful sit-in are activities explicitly protected under Article 37. But participants in such actions continue to face arrests, dispersal, and intimidation.

This trend has a retrogressive chilling effect. If a former Chief Justice can be arrested while engaging in a peaceful environmental protest, ordinary citizens may reasonably wonder whether exercising their constitutional rights is worth the personal risk. The message conveyed, whether intentionally or otherwise, is that rights may exist in law but not necessarily in practice.

The public must understand that Kenya’s democratic standing should not be measured only by elections. Democracies are also judged by how they treat dissenting voices, how they protect peaceful assembly, and whether citizens can challenge government decisions without fear of arrest or violence.

To be clear, Kenya remains more open than many countries within the East African region. Citizens can still organize, independent journalists continue to report, courts remain capable of checking executive power, and civil society organizations continue to operate. But democratic backsliding does not occur overnight. It often begins with the gradual normalization of restrictions on speech, assembly, and protest.

The Constitution remains one of Kenya’s greatest achievements. Constitutional rights, however, derive their value not from the words written on paper but from the willingness of state institutions to uphold them. As peaceful protesters face arrests, tear gas, injuries, and intimidation, the gap between constitutional promise and lived reality continues to widen.

The writer is a research assistant at Free Press Publishers.