Willy and Keriako, rights regime must rule corridors of justice

By Hassan Omar Hassan

I have found it opportune to have my first article this year directed to the Chief Justice and the Director of Public Prosecutions.

I, like many other Kenyans, have enormous expectations in their offices. In fact I was almost concluding my article when circumstances compelled me to change the subject matter and write this totally ‘new’ article.

The story of 25-year-old Warda Breik Islam has to be told! For this reason, I informed the editors of the Standard on Sunday that I would delay in submitting my article.

The Bill of Rights came into effect on promulgation day on August 27, last year. But little has changed since. A friend in the police force told me that to realise the letter and spirit of the provision of Article 49 (1)(f)(i) requiring an arrested person be brought to Court within 24 hours required the ‘tightening’ of discretion.

My officer friend lamented on the casual manner in which magistrates granted the police/prosecution requests to hold suspects beyond 24 hours. This is often for the poor and disenfranchised members of the society.

Warda married Ali Mohammed Ibrahim aka Jermain Jhon Grant on December 18 following an introduction from a family friend about a week earlier.

It was not to be a fairytale! Warda alongside her husband were arrested the next day, December 19 and charged in court on December 20 with being in possession of explosive materials (three different chemicals) and conspiracy to commit a felony.

Chief Magistrate Lydia Mutende granted the prosecution’s request that they be held for seven days as investigation were ongoing.

On December 27, Ali was sentenced to two years imprisonment on admission of giving false information to the police and being in Kenya illegally. The magistrate granted a further detention period of three days for Warda and others upon the prosecution’s request and set her ruling on bail for December 30.

Mutende granted Warda and others Sh20 million bail each. Warda’s tribulations had generated enormous sympathy. Within an hour of the 2:30pm ruling, a title deed for a property valued at over Sh20 million was made available.

The prosecutor, Peter Githonge, who was to process the bail, was already out of the court precincts when contacted at 4pm though he promised to return. The next thing, he switched off his phone and disappeared.

Warda was taken to Shimo la Tewa Remand Prison. The CJ and DPP are doubly conscious of how counter-terrorism measures are often used to limit or infringe on fundamental rights. As we deal with the threat of terrorism, respect for fundamental rights is non-negotiable.

What compelling reasons did the magistrate have to extend the detention period for 11 days? Was Warda informed of the reasons as required by the Constitution? The Constitution provides that one "be released on bond or bail, on reasonable conditions".

Is it the view of Mutende that Sh20 million is reasonable? Is Warda likely to abscond trial? Or is it her concern that she’s a bomb expert. KNCHR must formally take up the matter with the Judiciary Ombudsman through to the vetting process. The Bill of Rights is our concern.

The ‘Warda type’ of tribulations is happening to Kenyans every day. Discretion cannot be absolute. The CJ must, therefore, formulate rules that guide discretion.

The DPP must also take full charge and weed out police prosecutors. They impinge on the ends of justice. The regime of rights is the undeniable supreme ruler of the corridors of justice. Finally, parents must explore who they give out their daughters to!

The writer is a commissioner with the KNCHR

homar@knchr.org