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Embakasi East MP Paul Ongili alias Babu Owino faces up to seven years in jail if he is found guilty of insulting the Presidency.
The MP was arraigned before a chief magistrate’s court and charged with subversion of justice and using abusive language.
Mr Owino was ordered to spend one more night in police custody pending determination of his application to be released on bail.
He was charged with two counts of subverting justice and making statements to create disaffection against the Presidency.
The charges created a rare show in court as it took six hours of heated arguments between the prosecution and Owino’s lawyers over the question of whether he should be released on bail or detained until the case is heard and determined.
The prolonged session forced the magistrate, Francis Andayi, to adjourn all other matters scheduled for hearing in his court.
As the lawyers battled it out, hundreds of Owino’s supporters camped outside the Milimani Law Courts demanding his release.
Deputy Director of Public Prosecutions Nicholas Mutuku led four prosecutors in asking the court not to release the MP on bail. They argued he was a perennial offender who had been charged with four similar cases in the last 17 months.
“He is the kind of person who, if released, will not stop committing similar offences. The words he uttered are very serious,” said Mr Mutuku.
Owino’s statement was alleged to be abusive and calculated to create disaffection against the Presidency.
But his lawyers, led by senior counsel James Orengo and Otiende Amollo, objected to the charges and the bid to detain him.
“A casual look at the charge shows it is illegal and defective. There is nothing in the law which provides for a charge of subversion of justice. That was used in the old dark days to charge people for treason but was repealed through the new Constitution,” said Senator Orengo.
In addition, he submitted that there was no single person referred to as the “presidency”, given that the term is a collective name for the Office of the President and that the MP could have not committed an offence against the entire office.
The lawyers said the decision to charge the MP with an unknown offence was a calculated attempt by the Government to strip him of his seat. “We know that the real purpose of the charges and application to deny him bail are not what is stated in court but a calculated move to ensure that he misses eight sittings of Parliament so that the Speaker can declare his seat vacant,” said Mr Amollo.
Orengo also dismissed claims by the prosecution that Owino would interfere with witnesses and abscond court proceedings given that he had no fixed home.
He said it was not strange for politicians to have many homes as a way to enhance security.
On claims that releasing the MP would cause chaos as witnessed through demonstrations in Kiambu County on Monday, Amollo submitted that detaining him would cause more chaos as his supporters would take to the streets to retaliate.
“It is not in public interest to deny him bail since this will heighten political temperatures in the country. The balance of convenience to extinguish tension from both sides is to release him on bail,” said Amollo.
He said the fact that the DPP had referred the case to the ethics commission - to investigate whether the MP violated Chapter Six of the Constitution on leadership and integrity - proved there were ill motives behind the charges. The magistrate will rule today on whether to release Owino on a cash bail.