Police want to arrest NASA CEO Norman Magaya over anti-IEBC demos

Siaya senator James Orengo (left) and National Super Alliance CEO Norman Magaya

The National Super Alliance CEO Norman Magaya is hiding since Thursday night after learning police were looking for him.

Police have visited various places in the city where Magaya frequents, looking for him in vain.

“If you see him tell him to report to police in Nairobi Area,” said one senior officer.

This was after acting Interior Cabinet Secretary Fred Matiang’i said the government would charge Magaya for calling the demos that turned bad on Wednesday.

“We will charge him after we have quantified the extent of the damage,” Dr Matiang’i said.

The CS called on traders who lost their property during the demos to record statements with the police.

Matiang’i said the law requires one to notify the police of the demos, its route, its purpose, and await a response allowing it or turning it down, before proceeding for them.

Magaya through his lawyer Apollo Mboya has since written to the CS warning him against threatening to charge him.

“Our instructions is therefore to demand as we hereby do that you respect the law, stop the illegal pronouncements and intimidation of our client, ensure the police provide security to the peaceful demonstrators, apply the law equally with respect to the group styling itself as Nairobi Business Community and stop usurping the powers of the Director of Public Prosecution,” said Mboya in a letter.

He added that Article 157 (10) of the Constitution of Kenya states the Director of Public Prosecutions shall not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his powers or functions, shall not be under the direction or control of any person or authority.

“You cannot therefore usurp the constitutional powers and authority of the Director of Public Prosecution. In any event, our client reserves the right to commence legal action that he deems fit in the circumstances and in particular your unconstitutional and illegal pronouncements against him without further reference to you whatsoever.”

Mboya added Magaya is perturbed that before completion of investigations to identify those responsible for any breach of the law, Matiang’i called upon all Kenyans whose property was destroyed or looted during the demonstrations to report to the OCS Nairobi Central Police Station to facilitate legal action against Magaya.

“It is therefore evident that you have a pre-conceived mind to arrest our client irrespective of the outcome of that investigation.”

Magaya had notified the Nairobi County Police Commander of the intention to hold peaceful demonstrations in Nairobi and that a group styling itself as Nairobi Business Community has been participating in demonstration within the Nairobi CBD on the same days as NASA without issuing any notification to the Police.

This group, on more than one occasion, confronted and attacked the supporters of NASA peacefully demonstrating in accordance to Article 37 of the Constitution of Kenya that provides that: "Every person has the right, peaceably and unarmed, to assemble, to demonstrate, to picket, and to present petitions to public authorities."

“It is incumbent to note that once a notification for peaceful demonstration has been given, it is the duty of the Police to ensure security, public safety and observance of the law and order. This was reaffirmed in the Ruling delivered in the High Court of Kenya at Nairobi Constitutional & Human Rights Division Petition No. 169 of 2016 Ferdinand Ndung'u Waititu vs Attorney General and 12 others 2016,” added the letter.

With regard to any unfortunate destruction of property or looting during or after the demonstration he said, the police has the means and instruments to identify and arrest the law breakers taking into account that the Government spent Sh15 billion of taxpayers resources to acquire and install CCTV with facial and movement recognition.

He cited the ruling saying; “There are already in place adequate safeguards for the exercise of the rights under Article 37 This is through the Public Order Act (Cap 56) which seeks to preserve and protect the precious right to public assembly and public protest marches or processions by regulating the same with a view to ensuring order. Part 111 of the Public Order Act regulates public meetings and processions by providing for the need to notify the police service and also the power of the police service to stop or prevent a public the same Part III, the Public Order Act also prohibits the possession of -offensive weapons at public meetings and processions. It is then the duty of the police service to ensure that there is no breach of the peace from the commencement till the end of the demonstrations or picketing."

Nasa is expected to continue with the protests Monday despite the announcement by Matiang’i. The demos had been banned in Nairobi, Mombasa and Kisumu CBDs.

Dr Matiang’i cited Section 5 of the Public Order Act in making the decision even as he insisted that his order does not curtail the right of Nasa supporters to demonstrate and picket.

He said the ban followed a National Security Advisory Committee meeting and that it was due to the clear and imminent danger, for the time being.