State: Fear of unwanted pregnancies as Shakahola victims recover

The State has applied to have 65 people rescued from Kilifi's Shakahola forest, who are detained in a rescue centre, moved to Shimo la Tewa prison fearing blame for unwanted pregnancies.

Through Assistant Director of Public Prosecutions (DPP) Jami Yamina, the state has expressed fears that it may soon be faced with cases of unwanted pregnancies and/or sexual gender-based violence (SGBV) at the Sajahanadi Rescue Centre where the victims are being held. 

“The victims have regained health, they are strong, so male and female must be held in separate facilities. We do not want to blame the rescue centre for unwanted pregnancy, or SGBV. Maybe such cases have or may happen, you never know,” Mr Yamina told Shanzu Senior Principal Magistrate Joe Omido.

The prosecutor did not reveal much, but told the court that the victims mingle when they eat, bask in the sun and socialise freely in the small dormitories where men and women are together. 

“We must find a place where male and female victims are held separately,” said the prosecutor.

The group was rescued from the death cult run by preacher Paul Mackenzie, after they were convinced to starve themselves with the promise of meeting Jesus. The cult’s followers would die and would be buried in Shakahola forest. As of Friday, the death toll was at 425, with exhumations still going on.

The state also wants the victims to be transferred to the prison for further psychological treatment to help the police unravel what happened in Shakahola Forest.

Mr Yamina has revealed that the children who were rescued along with the 65 people have told investigators a lot about what happened in the forest, but the victims have refused to cooperate.

The state has also expressed disappointment that the victims are withholding vital information despite the fact that their children have revealed what happened in the forest. 

“Some of the victims’ spouses are with Paul Mackenzie's group. For some, children are missing. The average age of children missing is below 10 years. Before we go tough on Mackenzie and others, we need to get the victim's side of the story. It is not normal for 65 people to be giving a similar story like a photocopy machine,” said the prosecutor.

The state also wants the medical officer at the Shimo La Tewa prisons to ensure quality mental health care of each of the respondents and file their individualised reports, providing the progress and status of their treatment every two weeks.

The state wants further statements of the victims taken as part of further investigations to distinguish between victims and suspects.

Mr Yamina also applied that the National Legal Aid Service be asked to assign at least six available counsel to provide free legal services, and be present during the interviews of the 65 victims at the prison to ensure that their interests are protected.

In a supporting affidavit, Inspector Raphael Wanjohi, who is investigating the matter, said there is need to process the 65 respondents individually before further action is taken because some have refused to cooperate with the officers.

Human rights lobby Haki Africa has also moved to court for orders that the 65 people be declared victims of crimes perpetrated against them in Shakahola and be committed by the court to the Victims Protection Board indefinitely.

Mr Wanjohi also said it was necessary that investigations in the Shakahola massacre be completed and the police file submitted to the Director of Public Prosecutions for a decision to charge to be made.

“Such decision in required to take into account the sufficiency of the evidence to support a charge, who to charge, the most appropriate charges, alternatives to prosecution, the public interest, who to treat as witness, who to rightfully accord the rights of due as a victim, among other considerations,” said the officer.

The investigator further noted that such crucial information and evidence ought not to be left out where there are laws providing avenues and remedies to exhaust in their timely preservation while securing and observing the needs and rights of the respondents.

According to the investigator, public interest underlying every criminal prosecution is that the guilty shall be punished, the innocent acquitted and the victims of any crime accorded their day in court and justice done.

“The police have been delayed by the status of the respondents whose participation in the investigation has not been meaningful so far.

This has rendered the police unable to gather material information concerning the offence of radicalisation among others,” said the officer.

Mr Wanjohi noted that following the difficulty in obtaining information from the respondents, it was apparent that investigations may not be completed in good time unless by the intervention of the court to aid the police to gather information under Section 34 of the Prevention of Terrorism Act (Pota).

“Integrity of the investigation should be safeguarded while the health and other interests of the respondents require protection by orders of the court imposing such conditions as may be necessary on the gathering of the information from them under Pota,” said the investigator.

The state submitted that the Bill of Rights under the Constitution is not a suicide pact and that the right to life of every individual has to be protected and may not be deprived unless in the manner authorised by the Constitution.

According to the state, the respondents enjoy no such right as the right to die in pursuance of the freedom of worship.

“Circumstances of this case necessitate holding the respondents in custody for treatment and restoration of their health pending completion of investigations,” said Mr Yamina.

The state’s application is based on the opinion of the experts, and their common recommendation that the respondents be taken through further trauma-care based psychological counselling and that investigations be hastened.

“Treatment may very well put them on the quicker path of recovery, restoration of their health, preservation of their lives and in turn meaningful engagement with the investigators and be the beginning of other processes intended to reintegrate them into society in the short or long term,” said the investigator.

The state’s application was also informed by reports by Haki Africa and the Kenya National Commission on Human Rights on the limited space at the Sajahanadi rescue center.

“Given the intermittent fasting, the hard fast in Shakahola and the hard fast leading up to the charges against the respondents, the

Sajahanadi Rescue center may not have capacity to provide urgent medical care or other essential services to the victims who may have been critically ill, treated and discharged or urgent medical attention in the case of medical emergency,” said Mr Yamina.

The state also indicated that the problem of absconding meals or refusing to feed or refusing treatment can lawfully be tackled by the prison medical officer under Section 29(3 & 4) of the Prisons Act and in the event of medical emergencies requiring removal of any of them to hospitals, security is provided under Section 39 and 40 of the Act.

Mr Yamina has also raised concerns about the risks associated with allowing visits arising from the doubtful capacity of the centre to vet or verify or maintain records of the identities or mission of the visitors or to monitor the content of their conversation.

“GK prison regulates visits for the safety of the prison and the prisoner, and in order to prevent crimes. The incidents such as synchronised fasting or other instructions that may pass from within Mackenzie's ranks to the respondents can be eliminated or reduced so as not jeopardise investigations or endanger their lives and health,” said the investigator.

The victims’ advocate, Mr Yussuf Aboubakar, is set to reply to the application. Attorney-General Justin Muturi has also joined the case, through litigation counsel Emmanuel Makuto.

The matter will be mentioned on July 31.

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