Nanok (L) and Ethuro are led to the cells to process their bail/CFM
The two were presented before Nairobi Chief Magistrate Waweru Kiarie to face the charges but they did not take plea after their lawyers objected, arguing the charge sheet failed to disclose a reasonable claim.
Kiarie will issue a ruling on Wednesday whether the two should plead to the charges.
Defence lawyers are also expected to move to the High Court seeking an interpretation of the extent to which utterances made within the precincts of Parliament can be used as a basis for presenting charges in court.
The charge sheet presented before the court 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.
The prosecution through Senior Superintendent Onesmus Towett told the court that the accused should take plea as there was no High Court order barring them from answering the charges.
He said that the lawmakers were free to pursue matters relating to their rights if they think were being breached, in any other court.
Towett insisted that the particulars including the place where the offence was committed fell in the realm of evidence that ought to be produced before the court.
He argued that Section 214 Criminal Procedure Code also allowed the prosecution to amend the charges before the trial starts.
However the defence of five lawyers led by Tom Kajwang’ argued that the charge sheet 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.”
Another lawyer Jotham Arwa argued that the charges as framed failed to reveal any criminal quality as the Parliamentary Privileges and Immunities Act took away the criminality in utterances and that the court ought to respect the doctrines of Separation of Powers.
“It is not proper to take plea in a process that is legally flawed,” Arwa argued.
Lawyer Katwa Kigen also for the defence accused the police of trying to suppress opinion against them and failing to be objective in their application of law.
The two legislators were being sought by the police alongside Labour Minister John Munyes over statements they made last Thursday defending the massacre of 48 police officers in Baragoi.
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