Court frees MCA in hate speech probe

Nairobi Member of County Assembly Absalom Odhiambo Onyango, commonly known as Matakwey or Mobimba, is now a free man.

In a historic ruling, Milimani principal magistrate Gilbert Shikwe  yesterday blasted the police and prosecution for being insensitive to the changes in law while seeking orders to detain the Korogocho ward rep.

Magistrate Shikwe noted that the Inspector General of Police and the Directorate of Criminal Investigations should have known that the law in which they relied on while seeking orders to detain the lawmaker has been expunged from the statutes and does not exist.

The magistrate also put the Attorney General Justin Muturi on the spot for failing to present amendments to the law to Parliament as directed by three judges of the superior court in January 29, 2020. The AG had been given one year to make the amendments in the law which he has failed to do to date.

“The application by the DPP and DCI has no legs to stand on as it is based on non-existent law. I hereby dismiss the application and order the unconditional release of the MCA unless lawfully held,” the magistrate directed.

The court further noted that the hurried manner in which the state dashed the MCA to court leaves a lot to be desired.

“The amendment of the law has not been updated todate. The prosecution has not really addressed themselves on this issue. It remains unchallenged fact that the said provision  in Section 96 of the Penal Code has been declared unconstitutional by a competent court of a higher jurisdiction,” Shikwe stated.

The court further noted that it is unchallenged that the DCI relied on the said provision of the law while seeking the custodial orders. The magistrate concurred with defence lawyers Sam Nyaberi and Danstan Omari that one cannot be held on non-existent law.

Pangani Six

The lawyers had urged the court to discharge their client claiming police are using outlawed laws to secure Odhiambo incarceration.

Omari asked the court to invoke the ruling of the High Court rendered by now Court of Appeal Judges Jessie Lessit, John Mativo and Luka Kimaru which declared Section 96 of the penal code nullity.

Citing the decision where the famous Pangani six including former Machakos Senator Johnson Muthama and  two CS’ Moses Kuria (Trade) and Aisha Jumwa (Public Service), former Kiambu governor Ferdinand Waititu and two others were discharged of allegations of incitement to violence, Omari asked the court to free the MCA without further delay.

In the decision, the High Court found Section 96 of the Penal Code  ultra vires the constitution.

“A declaration be and is hereby issued that Section 96 (a) of the Penal Code is unconstitutional to the extent that it shifts the legal and evidential burden of proof to an accused person before the prosecution has discharged its legal burden of proof of establishing its case in a criminal trial, thereby violating the provisions of Articles 25 (c), 49 (1) (a) (ii) & (iii), (b), (d), and, Article 50 (2)(a), (i) & (l) of the Constitution, “ the judges ruled

The High Court on January 29, 2020 declared the section unconstitutional and freed the Pangani six suspects and barred the DCI and the DPP from prosecuting them with offences.

  “We urge this court to discharge the suspect unconditionally as the offences he is being investigated does not exist in law,” lawyer Omari stated.

Take legal action

Immediately after his release, the MCA, while addressing the media outside the courts, the MCA vowed to sue the DCI, IG, AG and DPP for illegal arrest and detention which has caused him embarrassment and disrepute.

The MCA had spent two nights in custody over allegations of incitement to violence and disobedience of the law over utterances he made during a meeting at Chungwa House in Capitol Hill on January 25. It has also emerged that the National Cohesion and Integration Commission has summoned six other MCAs including Nairobi Leader of Majority Peter Imwatok over undisclosed offences.

“I have just received a message that we have been summoned by the NCIC. We are not scared. I said yesterday if you want to dare us arrest Raila Odinga.We are ready anytime,any day to die for it,” Imwatok said after the release of his colleague. 

According to the summons, the six MCAs are set to appear before the commission on Tuesday next week.