185 anti-govt protesters arrested in Nairobi CBD released on bond

Senior Principal Magistrate Wandia Nyamu released the 185 protesters rounded up by police during Tuesday's anti-government protests and condemned the law enforcers for starving minors while holding them together with adults.

Two of the minors held since Tuesday afternoon collapsed in court during proceedings as the Directorate of Criminal Investigations (DCI) and the Office of the Director of Public Prosecutions (ODPP) applied to detain them among other protesters arrested during the demonstrations.

Defence lawyers James WaNjeri and Lempaa Soyinka intervened and pleaded with the court to take notice that some of those in custody were minors who had not eaten since their arrest. They asked the court to intervene, and in response, Magistrate Nyamu ordered they be escorted to another courtroom where they were fed.

The lawyers said the government was violating the constitution by disregarding the children's rights.

Magistrate Nyamu observed that when prosecution counsel Kennedy Amwayi stood up and claimed that the rights granted to children by the constitution were not absolute, she found his remarks to be insensitive.

"It is this attitude by the state that corrodes the provisions of the constitution meant to protect Kenyans. The framers of the constitution did not put explicit provisions for the treatment of children, whether in conflict (with the law) or not, in the constitution for nothing," she stated.

"It was intended that children and vulnerable members of society—the future of the country—be treated humanely and protected."

Another defence lawyer, Christine Murithi, had told the court that she visited the suspects and found women and men, children and adults, being held together. Among the suspects are 18 children, including a 15-year-old student attending a school along Temple Road in downtown Nairobi.

Prosecution counsel Amwayi filed an application by Chief Inspector George Karanja, who was seeking custodial orders to detain the suspects in four police stations in Nairobi for 21 days to conclude investigations.

Magistrate Nyamu said she took judicial notice that when the defence raised the issue of children being kept together with adults, the prosecution did not address it.

Some of the 185 protesters arrested in Nairobi CBD follow court proceedings on Wednesday, July 3, 2024. (Photo: Joseph Ndunda)

She added that it doesn't matter that the age has not been determined, adding that the minute a child is identified, all the rights accruing to them start running.

"None of the children had been fed since the time of their arrest. They were fainting in court. Not only were these children kept with adults, but some of them were injured, and no one attended to them. How does the state, having shown such inhumane treatment of the people it has in custody, seek orders to hold them further?" the principal magistrate wondered.

"Is the state so hellbound to catch the criminals as to forget that it has a duty to protect its own people? The people whose names have been called out as children ought to have been taken for age assessment before being brought to court. Fundamental rights and freedoms cannot and should not take a back seat in pursuit of criminals."

She released the minors on a personal bond of Sh10,000, which is to be guaranteed by their parents, but gave express orders that the children must go home immediately. The other protesters were released on a personal bond of Sh50,000.

The DCI had made the application to detain the suspects rounded up for allegedly committing criminal activities in Nairobi Central Business District (CBD).

CI Karanja of Nairobi Central DCI offices said he is investigating cases of breaking into a building contrary to Section 306(a) of the Penal Code and malicious damage to property in contravention of Section 339(1) of the Criminal Procedure Code (CPC).

The building the 185 are accused of breaking into has not been disclosed in the court papers, but Karanja says a police motor vehicle registration number, GKA 689V, a Nissan X-Trail, was extensively damaged.

Other offences that the DCI accused the arrested persons of committing include assaulting a police officer contrary to Section 103(a) of the National Police Service Act of 2011 and obstructing police officers in the execution of their duties in contravention of the same Act.

The protesters are accused of obstructing the police after using coffins to barricade roads in the CBD and stealing from members of the public during the demonstrations.

In the alleged offence where the DCI claims that the arrested persons assaulted police officers, they are suspected to have shot and seriously wounded Administration Police Constable Philip Avutanga Asaya attached to the Rapid Deployment Unit.

Heavy police presence in court on Wednesday, July 3, 2024 as the state prosecutes some of the 185 protesters arrested in Nairobi CBD on Tuesday, July 2, 2024. (Photo: Joseph Ndunda)

Karanja claims Asaya sustained a gunshot wound on his right-hand wrist, and a bullet was also lodged in his abdomen, all allegedly fired by the demonstrators.

"It is in light of the foregoing, that I pray this court to issue custodial orders authorising the holding of the (185) in custody for 21 days to enable thorough investigations to ascertain the extent of destruction and complete the investigations," states CI Karanja in the application filed before Senior Principal Magistrate Wandia Nyamu.

He wanted the suspects detained in different police stations in Nairobi, including Capitol Hill, Gingiri, Klimani, and Muthangari police stations.

But Mr Wanjeri, Ms Murithi and Soyinka opposed the application.

Wanjeri said the state is using the police and the ODPP to teach the protesters a lesson and is inviting the judiciary to be part of the same, "and we urge the court to reject that invitation."

The lawyer argued that it is unlawful for the police to seek orders to detain a suspect without knowing the charges they intend to bring against them

Soyinka urged the court to issue an order for the suspects listed in court papers but not present in the courtroom to be produced, expressing concerns that they may have been abducted within the court's premises.

The case will be mentioned on July 16.