The arrest and ongoing detainment of the eight Ambira Boys High School students is most probably illegal, a legal analysis made for RoGGKenya has found. In addition, the harsh reaction of the state agencies against the minor school boys is in sharp contrast with a leniency we can observe when famous politicians are involved.
This Monday, eight boys who are between 16 and 17 years old were arrested and arraigned in court for allegedly insulting the two Cabinet Secretaries Dr. Amina Mohamed and Dr. Fred Matiangi after a smartphone video of their wild KCSE celebration had become viral in social media. In the video they had uttered the “f-word” to the two ministers.
Not a Violation of Law
First of all, according to the assessment of legal expert Steve Ogolla, ”what the boys said is immoral but not a violation of the law.”
For being criminalised, what the boys said would have to meet the criteria for being regarded as a defamation / slander according to Penal Code 193. In Court decisions like this one http://kenyalaw.org/caselaw/cases/view/122339 we can find detailed definitions for the term defamation (search for the word defamation within that page).
This court stated: “Abusive words may not be defamatory per se. The words must be shown to have been construed by the audience as defamatory and not simply abusive.” The court also cited an earlier case against The Standard Group with the words: “A statement is said to be defamatory when it has a tendency to bring a person to hatred, ridicule, or contempt or which causes him to be shunned or avoided or has a tendency to injure him in his office, profession or calling.”
Can some Boys really injure the CS Office?
There is good reason to say that it does not injure a Cabinet Secretary to be abused – and not defamed – by a bunch of school boys.
While this is a question for a court to decide, the detention of the eight young men is even more questionable.
The Ambira boys appeared before Ukwala Resident Magistrate Gladys Adhiambo. They however, did not take plea to any charge after the prosecution requested for seven more days to complete investigations and assess their age.
The magistrate ordered that they be held at Ugunja police station children’s cell until Sunday, December 3.
Even after staying in police custody for more than 24 hours which is illegal, the minors were not charged with any crime.
They were also not released even on bail, and they had no one to represent them and request for it. This is illegal according to the expert assessment.
From our news post “When can a person be held by police for more than 24 hours?” we do not find any reason for justifying the police custody.
No good Reason for Remand
It is questionable what exactly the prosecution wants to investigate during the seven days the young men have to stay in remand. They certainly do not have to be in prison for their age to be assessed, and the other evidence – the mobile phone video – is clear.
Ogolla: “Section 36A of the criminal Procedure Code allows the prosecution to request the court to hold a suspect pending investigations. But this provision should not be abused, especially where no offence is disclosed.”
Public Pressure on Police Key?
It seems that the police and prosecution reacted to pressure from public and political leaders without evaluating statements and the available evidence to form a threshold for an offence. They had not even done the minimum which is to record statement from Cabinet Secretaries.
President Uhuru Kenyatta had ordered that “strict action be taken against the students so that they can know that they were not above the law”.
Why not a Civil Case?
Ogolla added: “If the Cabinet Secretaries Dr. Amina Mohamed and Dr. Fred Matiangi are convinced that the boys mentioned actually defamed them then it will be considered libel and they can sue in a civil court.”
Libelling a Sports among Politicians
It can also be argued that the Ambira Boys students’ behaviour reflects the Kenyan society where politicians and other public figures have been insulting each other in public but none has been arrested for that.
There are numerous examples of Kenyan leaders insulting each other:
- President Uhuru Kenyatta forgives Kissii County MCA Samuel Aboko who described him as a bhang smoker at a public rally three years ago. https://nairobinews.nation.co.ke/news/uhuru-forgives-kisii-mca-called-bhang-smoker/
- Deputy president William Ruto calls former Prime Minister a witch https://hivisasa.com/posts/ruto-calls-raila-a-witch
- Mbita MP, Millie Odhiambo calls President Uhuru Kenyatta a thief https://nairobinews.nation.co.ke/news/millie-odhiambo-regrets-insulting-president/
- Stop following me like I’m your wife, Uhuru tells Joho at Mtongwe ferry launch https://www.the-star.co.ke/news/2017/03/13/audio-stop-following-me-like-im-your-wife-uhuru-tells-joho-at-mtongwe_c1523952
- Gatundu South Mp, Moses Kuria while opposing the two third gender rule used vulgar language. http://afrikan-daily.com/moses-kuriavagina-not-a-disabilitytwo-thirds-gender-rule-to-fall/
- Nairobi Governor Mike Sonko calls Embakasi East Mp Babu Owino ‘homosexual, dog‘ https://www.the-star.co.ke/news/2017/09/28/video-kot-angered-after-sonko-calls-babu-owino-homosexual-dog_c1643451
The List is endless
These cases have never been taken to court yet they are leaders who are guided by Chapter 6 of the constitution and should therefore take greater care about what they say than school boys.
State Officers should behave
The Constitution of Kenya, 2010 provides under Chapter 6, for leadership and integrity of all public officers. The chapter is predicated upon the assumption that state officers are the nerve centre of the Republic and carry the highest level of responsibility in the management of state affairs and, therefore, their conduct should be beyond reproach. This means that under the Constitution Kenyans decreed that those whose conduct does not bring honour, public confidence and integrity have no place in the management of public affairs.
This applies to State Officers. But the Ambira Eight have no position in the management of public affairs.
By Carolyne Oyugi with Steve Ogolla