Meru Senator Mithika Linturi would be back in court over his controversial madoadoa remarks if anybody were to furnish the Office of the Director of Public Prosecutions (ODPP) with the original video clip of the rally where the words were uttered and th,e equipment used to record it.
Director of Public Prosecutions Noordin Haji now says Mr Linturi owes his freedom to the fact that nobody provided a credible record of the legislator uttering allegedly offensive words at a rally in Eldoret two months ago.
Mr Haji said this during an ODPP and International Commission of Jurists-Kenya workshop in Nairobi on Thursday (yesterday).
The purpose of the event was to validate a compendium on electoral justice as the country heads towards the August 9 elections.
The DPP said besides the clip and the gadget, witnesses would also be required to back the claims and thus sustain the prosecution of the Meru senator.
Mr Haji wondered why his office was being criticised for a case it did not even have the tools to prosecute in court.
“People do not understand the Linturi case. We have not made the decision to charge him yet. What happened was a matter of custodial orders. We had asked to have him in custody for five days but the court gave us one day and we were not ready to provide the evidence,” Mr Haji said.
This, he said, was due to the fact that the National Cohesion and Integration Commission’s investigators could not get hold of the original clip of Mr Linturi making the alleged hate speech during a Kenya Kwanza Alliance rally in Eldoret.
“One of the requirements of hate speech cases is that the first person who recorded the video clip and the equipment used to record the clip must be identified. It must be part of evidence. If you do not have that, there is no way we can make the decision to charge,” Mr Haji explained.
He said the media been willing to help sustain the case, it would have proceeded to full trial.
“But the media’s argument, which is valid, is that they have to be impartial and do not want to be pulled into these things. These are some of the challenges we face,” he said.
The DPP said to avoid such instances in the future, NCIC investigators must be on the ground during political rallies in order to record speeches.
He further asked the NCIC to identify hotspots and go a step further and cover individuals that they feel need to be monitored. These individuals could be the party leaders or known “troublemakers”.
“If I do not have the clip and witnesses then what am I going to do in court yet that is the law? Unless Parliament wants to change the law, our hands are tied. That is why we have asked the public and the media to be patriotic enough and be willing to become witnesses and help us with the clips. It is not sufficient, and it would not hold water for us to download clips from social media. It does not work that way,” he said.
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