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Kilifi county assembly Speaker Teddy Mwambire and Kilifi South MP Ken Chonga will spend the weekend behind bars after a magistrate court deferred the ruling on their bond application to Monday.
The two, who were among four individuals arrested on Wednesday during the anti-government demonstration at Mtwapa in Kilifi South, had already spent two nights behind bars.
The other two individuals are; Victor Katana (Chonga’s aide) and Patrick Chiro (Policy analyst at the officer of Kilifi Senator Stewart Madzayo).
The four had already spent two nights behind bars—at Kilifi police station on Wednesday night and at Shimo la Tewa Prison on Thursday night.
Mombasa Chief Magistrate Martha Mutuku, who was to deliver a ruling on whether the four should be released on bond or not, said she had not finished writing her ruling by Friday afternoon.
She cited time constraints and the lengthy submissions that had been made before the court by the prosecution and the defence.
She deferred the delivery of the ruling to Monday. The four will now spend their weekend at Port police station in Mombasa.
This comes even after the same court released 15 other protesters who were arrested in Mombasa during the anti-government demonstration.
The 15 were each released on a Sh100,000 bond with a similar amount of surety or an alternative of Sh10,000 cash bail each.
They were released after Mombasa Governor Abdulswamad Nassir and Mombasa assembly speaker Aharub Khatri paid Sh150,000 for their cash bail.
Mwambire, Chonga, Katana and Chiro were on Thursday afternoon charged with participating in unlawful assembly contrary to Section 78(1) as read with Section 79 of the Penal Code Chapter 63 of the laws of Kenya.
They are accused by the State of taking part in a procession and chanting anti-government slogans thereby causing members of the public to reasonably fear that they had assembled to commit a breach of peace.
However, they all denied the charges.
Nassir, who was among leaders who had shown up in court to stand in solidarity with the arrested colleagues in the Azimio coalition, describe the magistrate’s decision to continue holding the four as, “truly unfortunate.”
“Worst cases have been done where bail has been granted. As much as we respect the decision of the court, this is a decision that has never been witnessed in this country,” Nassir said.
After the court session, the police tried to block the lawyers and the leaders from addressing the press outside the court building.
Lawyer Danstan Omari, who was leading some 10 lawyers in representing those who were arrested during the anti-government demonstrations in Mombasa and Kilifi, said the police cannot purport to stop the lawyers from speaking without a court order.
“It is the darkest day that the lawyers of an accused person can be told not to address the media by the police. If they intend to stop us, they should give an order to that effect,” said Omari.
Lawyer Cliff Ombeta said it was clear that the government is getting frustrated.
“Surprisingly, the police confronted us telling us we cannot address the media. Clearly, the government is getting frustrated. You cannot stop us from talking,” Ombeta said.
Earlier on, during the court session, the prosecution asked the magistrate not to grant the four accused persons bail, saying they were a threat to national security.
Prosecution counsel Alex Gituma said that if the two leaders and their co-accused were released they would interfere with witnesses, adding that they were likely to engage in demonstrations again next week.
“In order to protect public order and the security of the people, this court has to refuse to grant the accused bail or bond terms,” Gituma said.
“The court should not take this matter lightly because if released, the accused will continue engaging in demonstrations thereby endangering the lives of Mtwapa people.”
He argued that the charges leveled against the accused were not bailable and attracted a one-year in jail term, and as such, the first respondent risks losing his Kilifi South MP seat if found guilty.
The defence counsel, however, defended their clients against the claims that they were not a threat to national security.
Jared Magolo, who was representing Chonga, argued that the witnesses lined up by the prosecution were all police officers, so there is no way that his client would threaten them as alleged.
“Who in his right mind can threaten a police officer? There is no evidence to that and, if so, we call on the prosecution to present the words said or written that are a threat to the police,” he said.
He further stated that there was no evidence that his client and co-accused had threatened to continue with the demonstrations.
Magolo said that the matter at hand was under Section 78 of the Penal Code which treats the accusation as a misdemeanour and as such there is no reason to deny his client bond.
He asked the court to give them a lenient bond term or alternatively release them on cash bail.
“This is an offence that a person ought not to be detained at all,” he said.
Ombeta, who was representing Mwambire, told the court that the state had no right to curtail the rights of individuals.
He argued that his client, being the Speaker of Kilifi County Assembly, ought to have been treated with the dignity he deserves.
“The best the police could have done is ask my client to present himself to the station and he would have readily done so,” Ombeta said.
Omari, who was representing Chiro, argued that the state did not act in good faith while arresting the four.
He questioned why they were arrested in Mtwapa, Kilifi county and moved to several police stations before ending up in court in Mombasa.
“The state must not criminalise Article 38 of the constitution that allows for freedom of demonstration and picketing,” he said.
Mombasa Senator Mohamed Faki, representing Katana, an aide to the Chonga, argued that the charge leveled against his client is a bailable offence and the state had no reason to continue detaining them.
Faki challenged the prosecution to state why no member of the public was lined up as a witness to the matter, yet the charge sheet against his client and co-accused stated that their actions were a threat to the public good.