DPP Ingonga accused of using courts as weapon against Kenyans

Faith Odhiambo LSK President & Houghton Irungu AMNESTY Kenya Director they called on the East African Community and the international community to demand that the government of Tanzania hold accountable the police officers and their commanding officers responsible for the torture assault of Boniface Mwangi & Agather Atuhaire. [Wilberforce Okwiri,Standard] From subversion, unlawful assembly, breach of peace, incitement, to terrorism, the Director of Public Prosecutions, Renson Ingonga, put another gear on the government's bid to end protests. But critics, including the Law Society of Kenya, senior lawyers, and former Chief Justices, say his game plan is illegal and the DPP has weaponised the criminal justice system while the Judiciary is entertaining it. The charges put the DPP on the spot, with LSK now saying it is in the process of filing a case before the High Court to stop all the charges relating to destruction of property, but now hinged on terrorism. LSK president Faith Odhiambo says that from last year, there has been a spike in trumped-up charges, children being kept for more than 24 hours, while others were placed with adults and charges that do not meet the threshold and charges being framed to ensure protesters remain behind bars. According to her, the greater harm is keeping those arrested behind bars by giving them unreasonable bail and bond terms, while the cases will eventually collapse. Reasonable terms "We are giving the Judiciary and the judicial officers a benefit of doubt as they look at those charges as some courts have been able to give quite reasonable terms, some on Sh1,000, others Sh5,000 but it is quite unfortunate that some courts are being forum shopped for purposes of giving very high bail and bond terms and also based on the charges being brought to ensure bail terms are quite high. "Courts should avoid being weaponised, to be used against the people of Kenya," she says. She cautions that the Judiciary is the last resort for the country. Lawyer Edward Muriu argues that the move to charge alleged protesters with terrorism is like killing a fly with a sledgehammer. According to him, even if the State succeeds, the image depicted to investors and partner countries is that Kenya is a country of terrorists. "We have almost 200 Gen-Zs in court with all manner of charges, including terrorism. When you charge people who were exercising their rights under Article 37 of the Constitution, and you turn them into terrorists, you may succeed in suppressing them, but you are sending a message to the whole world that Kenya is a country of terrorism, and Kenyans are terrorists. "Investors go away, tourists don't come because your security is not guaranteed," says Muriu, who is MP for Gatanga Constituency. Kenya's government relies on the Prevention of Terrorism Act (POTA), which was amended in 2014, to investigate and prosecute terrorism. The purpose of the law is to counter the financing of terrorism. For this, Kenya is a member of the Eastern and Southern Africa anti-money laundering group and has an established Financial Reporting Centre (FRC). The other role of the law is to assist in countering violent extremism, and it establishes the National Counter Terrorism Centre (NCTC). This multi-agency organisation is mandated to coordinate national counter-terrorism measures aimed at deterring, detecting, and disrupting terrorist acts. LSK deputy president, Mwaura Kabata, told Sunday Standard that terrorism is a crime recognised internationally, though there is no definition of what it exactly is. Locally, he said, terrorism is a specialised crime that is codified in a separate law. "Whereas all the other offences, the bulk of offences that are related to activities such as insurgency, or protests or violent upheavals, in a State are captured in a Penal Code," he says. For example, Mwaura said, if one burns a police station, if arrested, one should be charged with destruction of government property under Section 339 of the Penal Code. He adds that the State has an option of charging one with Arson, which is a felony offence defined in Section 332 of the Penal Code. "You don't charge me for any other offence, you charge me for one destruction of destruction of government property and two arson. When you ignore the provision of the Penal Code and move to the POTA, what you are doing is trying to find justification in the definition of the term to fit offences under POTA," he argues. Nevertheless, he is of the view that POTA was not meant to deal with Kenyans. Instead, according to him, it was a law specifically meant to deal with violent acts meant for organised terrorist groups such as Al-Shabaab, ISIS and Al-Qaida. Generate fear Mwaura says that the discussions before Parliament and the preamble of POTA are clear that the DPP went above board. " When the DPP approves charges under POTA for persons who have been arrested during a protest, what he is doing in abuse of his power is to allow persons to be charged with a more serious crime, to generate fear," he argues. He asserts that since Article 37 of the Constitution provides a right to peacefully demonstrate, the drafters of the anti-terrorism law provided an exemption under Section 2 for anything that happens in protests. "POTA does not have 'peaceful'. The Act itself exempts demonstrations and protests. If you are protesting, POTA recognises that sometimes things are destroyed, in protest, things are looted, even in the USA, shops are looted." "The DPP's use of POTA is itself an abuse of court process and unconstitutional because the constitution has given you a right and no one can limit it by subjecting you to proceedings which are contrary to what the statute was meant to achieve," Mwaura continued. Kabata reveals that LSK will be challenging Ingonga's decision before the High Court. He says that at the heart of the case will be subjecting protesters to terrorism charges. He said:" It is completely unethical, it is devoid of moral value, and to our end, it is not only an abuse of court process, it is an extreme abuse of office." Lawyer Gitobu Imanyara, on the other hand that the DPP's move is not new. Imanyara was arrested, jailed for five years at Kamiti Prison without a fine, kept in block E at Kamiti Maximum Pris, on which then housed insane prisoners, and subsequently tortured after his release on or about July 4, 1990, at Nyayo House for deciding to represent the Air Force personnel who had been accused of plotting the 1982 coup. Gitobu sued the government in 2,010 and Justice Isaac Lenaola (now a Supreme Court Judge) awarded him Sh15 million as compensation. He, alongside Njehu Gat aki, who was awarded Sh10 million, and Bedan Mbugua, who won Sh7 million as compensation, appealed, seeking more for the violations by the government. However, Justices Alnashir Visram, Fatuma Sichale, and Jamilla Mohammed declined to increase the awards but acknowledged inhuman treatment, physical and mentatorturere and losses in the hands of State agents. In his case, Gitobu narrated that the High Court registrar had initially directed him to defend Paul Nakwale Ekai, who was charged with the murder of one Joy Adamson at the High Court in Nyeri. He said that during one of the appearances and in the course of representing the accused, the trial Judge, Mathew Guy Muli, now deceased, ordered his arrest and was only released after the intervention of the then court prosecutor, senior counsel Evan Gicheru, who later became the Chief Justice. He said his incarceration for five years was based on fabricated documents claiming that he was part of a military coup plan, which, if it were successful, he was to serve as the Attorney General in the military government. In his interview with the Sunday Standard, he said it is excessive to charge protesters with terrorism, adding it is not a new phenomenon. He asserted that hefty bail terms amount to punishment. Detaining without trial "It is an old tactic that we have seen before. They are elevating free speech to terrorism and are giving bail conditions that amount to punishment; you don't give bail conditions that a suspect is unable to meet," says Imanyara. However, according to him, the problem is that there is a new trend of courts playing into the game of detaining persons without trial for months on end. "The other emerging thing is hurried arrests and asking for time to investigate to keep suspects for weeks and months, which, again, is an old tactic which the judiciary seems to condone, and which amounts to detention without trial. It is wrong. We must call out the Judiciary," said Imanyara. Judiciary Chief Registrar, Wilfridah Mokaya, claimed that there is a growing wave of personal attacks against judicial officers over bail and bond rulings. According to her, the amount handed by the magistrates was guided by the law and legal frameworks put in place for the same. "Bail and bond rulings are guided by legal frameworks, not personal opinions, including the Constitution, the Criminal Procedure Code, and the Judiciary's Bail and Bond Policy Guidelines," she said. Former Chief Justice David Maraga has accused the government of "weaponising the criminal justice system to terrorise arrested youth and their families." "Ruto's government is weaponising the criminal justice system to terrorise arrested youth and their families. The reckless use of the Prevention of Terrorism Act and ATPU is a violation of-or a significant threat to-Kenyans' freedom of assembly and expression, the right not to be arbitrarily detained or denied bail, and the right to freedom and security of the person," said Maraga. Politically motivated His sentiments mirror those of senior lawyer Paul Muite, who says that the charges are politically motivated. "Imposing these unreasonably tough bail conditions on Gen-Zs charged with politically motivated terrorism offences violates the Constitutional Right to Bail; Article 49(1)(h); reasonable bail conditions. Magistrates should avoid being perceived as an extension of the executive," said Maraga. The charge sheets before the Kahawa Court have a mix of POTA and Penal Code, with the latter being the alternative charge. However, DPP opted to charge former Deputy President Rigathi Gachagua's ally, Peter Kinyanjui and Wanjiku Thiga with terrorism. Kinyanjui and Wanjiku were charged separately with the commission of a terrorism act. According to the charge sheet, they were accused of allegedly causing a serious damage to Government offices and buildings - Kikuyu Probation offices, Kikuyu Law Courts, Kikuyu Sub-County Offices, Kikuyu Chief's Office, Kikuyu Registrar of Persons' Offices, Sub-County Education Office, Sub-County Accountant's Office, Kikuyu Registrar of Lands Offices, Dagoretti Police Post and Kikuyu Deputy County Commissioners' Office. Sunday Standard reached out to the DPP by calling him, sent questions about his decision to press terrorism charges, but by the time of going to press, he had not responded.

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