Ethuro (L) and Nanok when they appeared in court on Monday/CFM-File
Chief Magistrate Kiarie Waweru set the two free and restrained the prosecution from substituting the charge immediately.
The magistrate said police who presented the two in court on Monday failed to disclose in the charge sheet the exact words that each legislator uttered and where the offenses took place.
“It is impossible for the two lawmakers to have jointly uttered a similar statement simultaneously to warrant the charge to stand because I don’t not see the particulars to support the latter,” he ruled.
The charge sheet presented before the court on Monday read: “That on the 15th day of November 2012 within Nairobi county jointly with others not before the court without lawful excuse uttered words namely if you do not disarm the Pokot and Samburu it is only the Turkanas you want to disarm. That you come in the night to shell a village, they decided to wait for them in the valley, that is what happened and in the valley it is harsh, hot, it is caved you cannot fight there if you have not fought there.”
According to the prosecution, the words implied that it was desirable to bring death or physical injuries to police officers in Suguta Valley within Baragoi.
Kiarie ruled that the first quote in the charge seems to be a complaint to the government while the second quote seems to give an opinion as to why matters took the turn of event where 48 police officers were massacred in Suguta Valley.
On Monday the defence of the MPs led by Tom Kajwang’ argued that the charge as drawn failed to meet the threshold expected of charges as required by Section 134 of the Criminal Procedure Code.
Section 134 requires that: “Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.”
The magistrate in his ruling reaffirmed Section 134 saying that police failed to indicate the venue where the alleged offense was committed.
“On the face of the charge sheet it is not indicated where the offense was committed. The court is therefore unable to make a finding whether the words were uttered in parliament where MPs have privilege and immunity,” ruled Kiarie.
The magistrate opined that that a charge should give sufficient and reasonable information so as to enable the defence to prepare themselves adequately.
The MPs had objected to the charges arguing that the Parliamentary Privileges and Immunities Act took away the criminality in utterances made while within the precincts of Parliament.
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