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Former Kenya Navy soldiers risk life sentence for deserting duty, State warns

By WILLIS OKETCH | Updated Thu, April 17th 2014 at 00:00 GMT +3
A Kenya Navy ex-soldier on trial. The accused soldiers want to be released on bail. [PHOTO: GIDEON MAUNDU/STANDARD]


MOMBASA, KENYA: The Government has warned that ex-Navy servicemen held at Mtongwe in Mombasa for close to two months could get a life imprisonment for deserting the military.

State lawyer Alex Muteti opposed an application to release the 26 former soldiers who have been working for US Security firms in Kuwait, Iraq and Afghanistan. He claimed that the detainees could easily abscond trial for desertion charges, which they are facing before court martial, if given bond.

Mr Muteti’s argument ignited an immediate response from defence lawyers who accused the State of holding the former servicemen illegally and charging them under an unconstitutional law that did not exist when their clients allegedly deserted the Navy in 2007 and 2008. The lawyers also claimed that a life term in jail could only apply if the former soldiers had deserted the military in wartime.

Wednesday, Justice Edward Muriithi extended orders suspending the court martials to April 30 when the High Court will also determine if the military courts should try the detainees or if the suspects can be set free on bail.

But the defence lawyers applied for the extension of the stay orders issued last week and were to expire Wednesday. They also applied for bail for the detainees and a declaration to strike out the desertion charges, terming them illegal and unconstitutional.

Muteti, who is representing Kenya Defence Forces (KDF), told Justice Muriithi that the ex- servicemen were still considered as members of the disciplined force and can be asked to serve at any time, arguing they are not ordinary Kenyans.

“Members of KDF are not ordinary Kenyans. They are highly trained in weapon handling among other things,” said Muteti, adding: “We fear the accused might abscond if released on bail for fear of life imprisonment.”

Muteti insisted that KDF was acting within the law and should not be stopped from carrying out its mandate as was provided in the law.

Muteti said the soldiers should have applied for bail in court martial before coming to the High Court for the orders they are seeking.

But in a swift opposition, lawyers of the 26 ex-servicemen disagreed with Muteti’s submission saying their clients were only liable to a jail term of two years because they were charged with offence they committed before KDF Act 2012 became operational.

Mr Daniel Kamunda argued that the service men who desert duty when Kenya is at war with another country are the ones who are supposed to face life imprisonment if found guilty.

The other lawyers representing the soldiers are Henry Kurauka, Charles Mwalimu and Michael Mwanyale.

Meanwhile, Justice Murithi has stopped any Court Martial proceedings from today until April 30 when he will give his ruling on whether the proceedings will be stopped permanently and if the soldiers can be released on bail.