Incitement case against 3 politicians thrown out

A court has dismissed criminal charges on incitement to violence levelled against three politicians, as war on hate speech and inflammatory remarks dip into confusion for lack of a legal backing.

Makadara MP George Aladwa, former Machakos Senator Johnstone Muthama and ODM party activist Japhet Muriira Muroko are the first to benefit with the High Court’s declaration that the criminal charge of incitement to violence is based on an unconstitutional legal provision.

Tuesday, the three were set free by Milimani Chief Magistrate Francis Andayi based on the High Court’s ruling.

“I hereby dismiss the charges against the accused persons and thus the case is terminated,” ruled Andayi while underscoring the High Court’s judgement.

Constitutional lawyer Dr John Khaminwa, who was representing the three in the application to terminate the prosecution, said having being charged under section 96 (A) of the Penal Code which now lacks force of the law the case was not sustainable.

On January 29, 2020 the High Court ruled that section 96 (A) of the Penal Code is unconstitutional as it shifts the legal and evidential burden of proof to an accused person from the prosecution.

The three-judge bench comprising of Justices Jessie Lessit, Luka Kimaru and John Mativo declared that the section of the law was unconstitutional for being in conflict with provisions of a fair trial and fair hearing.

The bench held that the said section of the Penal Code infringes and transgresses on presumption of innocence of an accused person in a criminal trial.

Following the declaration, the three politicians together with Gatundu South MP Moses Kuria rushed to their respective trial courts seeking termination of their prosecution.

But Mr Kuria who is facing similar charges yesterday suffered a blow after the court failed to withdraw the case.

Senior principal magistrate Kennedy Cheruiyot declined to make a ruling on Mr Kuria’s application to have the charges withdrawn saying he needed time to read a High Court judgment.

“Considering the nature of the matter, I ask the parties to give me time. I need to conduct proper research for this matter as it concerns incitement to violence and disobedience of the law,” said the magistrate.

In adjourning the proceedings of the case, the magistrate added that crucial issues had cropped from the High Court judgement and he required time.

According to the charge sheet, Mr Kuria is accused of inciting the National Youth Service (NYS) cohorts to violence during a meeting at Gatundu stadium on July 26, 2015. He is said to have made inflammatory remarks contrary to section 96 (A) of the penal code.

But on the basis of the judges’ declaration, Mr Kuria sought termination of his case. His lawyer Geoffrey Omenke had told the magistrate that their continued trial is unlawful as he asked the court to adopt the High Court declaration.

“This court has no mandate to entertain the present case and should instead acquit the accused person. The Attorney General should come up with a remedy to address the section of the penal code that now stands unconstitutional,” stated Mr Omenke. Mr Kuria’s case will be mentioned on March 12, 2020.

Section 96 (A) of the penal code says the burden of proof lies upon any person who utters, prints or publishes any words or does any act calculated to bring death or physical injury to another person, class, or community.

The three judges found that the inevitable effect of the section of the penal code is that the accused person is under compulsion to adduce evidence of reasonable cause to avoid conviction even if the prosecution leads no evidence to establish a case.

The judges ruled that the said section of the law offends the long-established rule of common law on the burden of proof that “it is always for the prosecution to prove the guilt of the accused person, and that the proof must be beyond a reasonable doubt.”

Following the finding, the bench recommended that to the Attorney General to prepare a Bill to be presented to Parliament with a view of remedying the deficiency in section 96 (A) of the Penal Code.

The bill, the judges said, should be to amend the said section of the law to conform with the Constitution as stipulated in section 7 of the Sixth Schedule to the Constitution.

They added that the Attorney General should do so within a period of one year so that the purport and intent of the disputed provision is maintained.