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Kuria and Waititu acquitted of incitement charges

By Faith Karanja | Updated Tue, February 21st 2017 at 00:00 GMT +3
Gatundu South MP Moses Kuria and Kabete MP Ferdinand Waititu celebrate on the corridors of the Milimani Court yesterday after they were acquitted of hate speech charges due to lack of evidence. [PHOTO: GEORGE NJUNGE/standard]

Gatundu South MP Moses Kuria and his Kabete counterpart Ferdinand Waititu have been acquitted of incitement to violence charges due to lack of evidence.

Senior Principal Magistrate Charity Oluoch ruled that the prosecution had failed to provide enough evidence to warrant conviction.

"I have read the submissions from both parties but I am not satisfied that the utterances could lead to incitement to violence," said Ms Oluoch.

The court also ruled that the English and Kiswahili translations provided as part of the evidence were incorrect.

Further, the authenticity of the clip containing the insightful words was put into question as it did not have an author.

"The defence contended that the original video was not produced in court and the one given could have been altered," said Oluoch.

She added that there was no evidence to show that Mr Waititu meant to circumcise anyone. According to Oluoch, the materials used to upload and record the video should have been produced in court.

"The original maker of the video is unknown and the accused in their defence said they were only expressing themselves within an alleged incitement to violence offence," said Oluoch.

Mr Kuria and Waititu were arrested alongside four other MPs, and they became known as the Pangani Six after being detained in June last year.

In her ruling, the magistrate concluded that the video content of the evidence produced in court could have been altered or edited.

Other leaders arrested with them at the time were Machakos Senator Johnstone Muthama, Suna East MP Junet Mohamed, Timothy Bosire of Kitutu Masaba, Kimani Ngunjiri of Bahati, and women representatives Aisha Jumwa and Florence Mutua of Kilifi and Busia respectively.

But the MPs' acquittal may not last long after Director of Public Prosecutions Keriako Tobiko said he will appeal the ruling.

Mr Tobiko said the ruling was "strange" and will set a bad precedent for other related cases relying on video as evidence.

"The magistrate's ruling is a severe setback in the fight against hate speech and sets a bad precedent in ongoing cases that rely on video footage and CCTV clips," said Tobiko.

He added: "I find the ruling strange. The magistrate cannot term doubtful the credibility of the video footage presented in court as evidence. The video was obtained from the media houses and authenticated by the Communication Authority of Kenya. Rulings must be in tandem with technology advancements," he added.

In July last year, Mr Muthama was cleared of incitement to violence charges. Chief magistrate Daniel Ogembo dismissed the charge, saying it was unfair to have the senator in custody for four days for an offence he committed in 2015.

Muthama was charged in June 2016 alongside seven other lawmakers with incitement to violence.

Recently, Kiambu Governor William Kabogo was acquitted of hate speech charges after a Nairobi court ruled that the prosecution had presented weak evidence.

Last week, University of Nairobi student leader Babu Owino was acquitted of incitement to violence charges.

The Students Organisation of Nairobi University leader was set free after Senior Principal Magistrate Kenneth Cheruiyot ruled that the prosecution had failed to prove its case.

"The respondent admitted to making the statement but denied they were meant to cause harm," said Mr Cheruiyot.


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