State agencies clash over Linturi case
Meru Senator Mithika Linturi at Nakuru Law Courts on January 11, 2022 over his incitement case.
The acquittal of Meru Senator Mithika Linturi in a hate speech case last month has exposed the sour relationship between two agencies with overriding responsibilities.
The exoneration of the legislator following his “madoadoa” comments at a rally in Eldoret on January 8 has angered officials at the National Cohesion and Integration Commission (NCIC).
NCIS has accused Director of Public Prosecutions (DPP) Noordin Hajji of letting Mr Linturi walk free despite “a watertight case”. In a protest letter, NCIC said the withdrawal of the miscellaneous criminal application amounted to a “conspiracy to defeat justice”, an offence under Section 117(c) of the Penal Code.
“[Withdrawal of] the [case] while in full knowledge that the High Court had ordered that the petition ... would be heard if the suspect [was] not charged by February 28 is a well-choreographed scheme to assist the suspect to evade justice,” the commission stated.
Ethnic contempt
The senator was set free by a Nakuru court after the DPP failed to present any charges, saying the matter ought to be investigated further. Mr Linturi’s remarks at a rally were broadcast live. NCIC suggested that Mr Linturi should have faced charges of ethnic contempt contrary to Section 62(1) of the NCIC Act No. 12 of 2008.
In the rally, the senator had described opponents of Deputy President William Ruto as “madoadoa [stains]”. After his arrest, police sought seven days to conclude investigations, but the court released him on a Sh5 million bond or an alternative cash bail of Sh2 million. Nakuru Chief Magistrate Edna Nyaloti directed that the politician be held at Kaptembwo Police Station and gave detectives a month to complete investigations.
But on February 28, the DPP requested to withdraw the case after the police reportedly failed to gather enough evidence to support the charges.
NCIC chief executive Skitter Ocharo said the case was of great public interest and its withdrawal was a betrayal of the people.
“Section 4(1) of the ODPP Act provides that in fulfilling its mandate, the office shall be guided by the constitution, following fundamental principles, such as the need to serve the cause of justice, prevent abuse of the legal process and public interest,” she said.
NCIC claimed the prosecution counsel blatantly lied to the court that the matter was being withdrawn as the investigators were yet to cover some points highlighted by the DPP.
“It is noteworthy to mention that the file was sent to the [Office of the] DPP on February 21 [through] our letter ... dated February 18 after covering ... the five points satisfactorily.”
Civil unrest
The commission said it would stand on the right side of history as having prosecuted the dereliction of duty by the DPP “if any violence, civil unrest, and or massacre occurs as a result of untamed ... utterances by war mongers”.
Mr Linturi was arrested on January 8 at a hotel in Eldoret and taken to Kaptembwo Police Station the following day. He was then moved to Naivasha and later to Nairobi for questioning. He was produced in court on January 10. Under Section 96 of the Penal Code, offenders found guilty of propagating hate speech are liable to imprisonment for a term not exceeding five years. But lack of clarity on how digital evidence can be admitted in court continues to mire prosecutors in a legal loophole.
A review of past hate speech cases shows that most of them were dropped due to lack of evidence. Others failed because prosecutors were unable to produce witnesses, especially if inflammatory statements became public through videos picked up from the internet.
Some of the accused walked free after challenging the constitutionality of the law that makes hate speech a criminal offence.
