|LISTENING TO THE NOISEMAKERS on both sides of the divide, I am left with no doubt that what these idle politicians are mistakenly talking about is an exchange of prisoners of war.
It is as if the internally displaced persons are prisoners of war held by ODM, while youths in custody are PNU prisoners. So the two sides are publicly bargaining for a prisoner swap: PNU should unconditionally release the youth in exchange for ODM assuring the peaceful resettlement of IDPs.
Unless this is the case, why should the ODM brigade insist that the youth (their supporters) in police custody should not be accorded a fair trial? A blanket pardon denying the youths a fair trial, where they are given a fair hearing by an independent court, will abuse their fundamental human rights.
First and foremost, whereas the guilty will be happy to walk away scot-free, the innocent will not be given the chance to prove their innocence.
SECONDLY, SINCE AMNESTY CAN ONLY be conferred on the guilty, a blanket amnesty is ill-advised as it will forever condemn the innocent for crimes they never committed.
The third danger of a blanket amnesty is that all the youths who were arrested and have been in custody ever since, without being produced in court, will suffer injury to their constitutional and fundamental right not to be held in police custody without being produced in court within the stipulated time – which is, 24 hours for minor offences, and 14 days for capital offences.
After arrest and detention, it is a gross violation of anybody’s constitutional and fundamental rights not be produced before a competent court of law within the time stipulated in our Constitution.
Our laws are very clear and specific – that suspects can only be kept in detention or cells, for the stipulated time. At the tick of the first second after the expiry of the stipulated time, if they have not been brought before court, their continued confinement is an unmitigated illegality as it is a violation of their fundamental and constitutional rights.
Important precedents in such matters have been set in our courts in cases like Albanus Mwasia Mutua Vs. The Republic, Cr. Appeal No 120 of 2004, and High Court Criminal Case No 40 of 2007 Republic Vs. James Njuguna Nyaga, and, most importantly, in High Court Criminal Case No 551 of 2007, Ann Njogu & 5 Others Vs The Republic.
While releasing the accused in the Ann Njogu & 5 Others Vs The Republic case, the judge ruled clearly “that upon determination that the constitutional rights of the applicants have been violated, any prosecution against them or any of them on the basis of the events for which attempted charges were being made this morning, 2/8/07, is null and void. And that is so, and will remain so, irrespective of the weight of the evidence that the police might have in support of their case. This is on the simple reason that such a prosecution would be based on an illegality and a null and void case.”
The judge continued: “Finally, all should note that there is as yet NO known cure for the nullity that results from attempted prosecution of any person, in this country once it is shown that his/her constitutional and fundamental rights were violated prior to the purported institution of the criminal proceedings complained against.
‘‘Nor is there any room for extension of the constitutionally provided-for period of 24 hours. If the prosecution comes an hour after the expiry of the 24 hours, it could as well come after a year. Either way, such prosecution is in violation of the rights of the arrested or detained person or persons, and it is illegal and null and void.”
ON THE OTHER HAND, THE PNU SIDE, which is in effective control of the security apparatus of the State, should stop behaving as if they are holding prisoners of war who have no rights to a fair trial.
Going by reports in the media, months after they were arrested, most of the accused youths have not been produced before court. They are being treated as though they are enemy combatants.
Since everybody is presumed innocent until proved guilty, the Government should stop playing games and produce these Kenyans in courts, which are the only institutions qualified to establish their guilt or innocence.
The law, which, by the way, also provides for amnesty, should run its full course.
The innocent and those whose fundamental rights have been violated should be heard and set free immediately. And should any of those who committed the alleged heinous crimes be released, then it is the police, on whom the duty of custody falls, who must be held accountable for letting dangerous criminals off the hook by not complying with the law.
Mr Okoiti, is a human rights activist and a playwright