, NAIROBI, Kenya, Oct 13 – A cameraman crouches then proceeds to creep in front of the Chief Magistrate’s bench before sitting back on his haunches when he gets an unobstructed view of the suspect.
The suspect stands in front of the dock in an impeccable suit with his fingers intertwined in front of him.
A few shots in, the cameraman makes himself more comfortable by crossing his legs out in front of him, sitting back on the tile; settling in for the kind of picture that could grace the front page of a newspaper.
If the flawless suit or the cameraman’s antics weren’t a dead giveaway, the buzz created by his entry into the courtroom left no doubt that a newsmaker was in the building.
The newsmaker in question? Machakos Senator Johnson Muthama; the charges he was answering to… incitement to violence.
“On September 23 at Uhuru Park in Nairobi City, you uttered words to wit ‘Kuanzia wiki ijayo kama walimu hawatalipwa, hakuna mtu ataenda kufanya kazi , na yule ataenda kufanya kazi atakula mawe (translated to mean: From next week if teachers will not have been paid nobody will go to work. And whoever goes shall be stoned) which words indicated it desirable to bring death and physical injury to persons in Kenya,” the charges read.
“Serious” is how Prosecuting attorney Dr Leonard Maingi described them when he scoffed at the Senator’s attempts, through his lawyer John Khaminwa, to secure his release on a Sh25,000 cash bail.
But the newsmaker hadn’t walked in defenceless. What could be described as a battalion of lawyers, nine in total, sat or stood to his side – two of them senior counsel.
“I have the money in my pocket,” Khaminwa urged, “ask the cashier to come for it,” he said before going on to list all the other Members of Parliament he’d defended in the past and who were released on “generous” bail terms.
Maingi disagreed pointing out that 24-hours earlier another newsmaker, Political Scientist Mutahi Ngunyi, stood in almost the same spot as Muthama now did, his fingers also intertwined in front of him and it cost him Sh500,000 in cash to secure his release also on the charge on incitement. In his case however, to ethnic contempt.
“Generous” in Chief Magistrate Daniel Ogembo’s eventual estimation was Sh300,000 in bond with one surety of a similar amount and with the alternative of a Sh100,000 cash bail.
“The charges Ngunyi is facing are based on the National Cohesion and Integration Commission Act while Muthama’s are based on the penal code,” is how he explained it.
Earlier that morning High Court Justice Joseph Onguto directed that Chief Justice Willy Mutunga constitute a three-judge bench to hear Muthama’s challenge to his prosecution. The penal code section he’s accused of contravening, 96(a), at the heart of the matter.
Muthama wants the provision which places the burden of proof on the accused to be declared unconstitutional.
He also wants the charges against him quashed on the grounds that his prosecution is politically motivated.
He has accused Interior Cabinet Secretary Joseph Nkaissery of interfering with the independence of the Inspector General of Police by directing, in a press statement issued on September 24 from El Paso in the United States, that Muthama be investigated.
Contrary, Muthama contends, to Article 245(4)(a) of the Constitution which clearly stipulates:
“The Cabinet secretary responsible for police services may lawfully give a direction to the Inspector-General with respect to any matter of policy for the National Police Service, but no person may give a direction to the Inspector-General with respect to the investigation of any particular offence or offences.”