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| Zacharia Oichoe, a former Kenya Navy officer, when he appeared before a martial court recently. [Photo: File/Standard] |
By Willis Oketch
Mombasa, Kenya: The High Court in Mombasa has ordered the release of 26 former Kenya Defence Forces (KDF) soldiers being held at Kenya Navy Mtongwe base on desertion charges.
In the landmark ruling, the court also suspended their trial by court by a further 60 days.
Within these days, the court will determine whether the detainees’ constitutional rights have been violated through trial at a court martial.
Their lawyers argue that as ex-soldiers, they cannot be tried by military courts under Kenyan law. The State, however, insists that the soldiers never resigned lawfully and remain subject to the rules guiding serving military officers.
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The former naval servicemen are being tried for allegedly deserting the military to seek jobs with US security firms in Kuwait, Afghanistan and Iraq in 2007 and 2008. They were arrested early this year after being allegedly tricked to report to the base.
They have been held in military custody for close to 70 days. By the time of going to press yesterday, it was not clear whether the detainees had been released from detention following the High Court order.
Justice Edward Muriithi ordered the ex-soldiers to be released on a bond of Sh500,000.
“During the time that the court martial proceedings are stayed, the petitioners, in accordance with the right to liberty be released on bail upon reasonable terms to ensure their attendance before the court martial for their trial as and when court directs,” said Justice Muriithi.
He ordered the suspects to deposit their passports with the court martial and report to the KDF bases near their homes once every 14 days pending determination of the petition.
The judge said to proceed with the court martial while the petition is pending in the High Court may render the case nugatory.
“Although there is good reason in prosecuting the offences facing the petitioners for good discipline of the members of the Kenya Defence Forces, there is no emergency for the trial to be conducted right away without affording opportunity for the petitioners to test before the High Court the constitutionality of the charges and their trial,” said Justice Muriithi.
He said although the court martial has a constitutional and legal mandate to try the former soldiers, it is subordinate to the High Court.
Judicial resources
The ex-soldiers were represented by Henry Kurauka, Damiel Kamunda, Michael Mwanyale and Charles Mwalimu. KDF was represented by Jamii Yasmin.
The judge said responsible use of judicial resources calls for stay of proceedings before court martial until the High Court makes its verdict.
The High Court has a supervisory jurisdiction over the court martial and it may give directions it considers
