Court releases 22 elders charged with being members of mungiki

@Alicewangechi

A Murang’a law court has released 22 elderly persons accused of being members of the outlawed mungiki sect.

The 22 were arrested on December 31 last year while conducting traditional prayers at Mukurwe wa Nyagathanga shrine, and later released on bond. They were yet to take a plea.

The elders through their team of lawyers that included Martha Karua, Ndegwa Njiru, Jeremiah Kioni, Kibe Mungai and Kinuthia Mwangi, maintained that their arrest was an attempt to curtail the Agikuyu culture.

On February 12, Deputy President Rigathi Gachagua ordered the Director of Public Prosecutions to review the case and have it withdrawn saying it was wrong for the police to arrest the elders in a gazetted shrine.

This prompted the prosecution to apply to have the case withdrawn under section 87 (a) of the criminal procedure code, a decision that was opposed by the elders.

On Wednesday, the Office of the Director of Public Prosecutions  told the court that it did not have sufficient evidence to charge the elders to conviction.

The prosecution told Senior Principal Magistrate Edwin Nyaga that the law allows the ODPP to withdraw charges at any time before prosecution.

“These charges were preferred on the basis of threshold test where the prosecution was expected to present more evidence through the investigative officers.”

“The evidence that we expected to substantiate the charges was not forthcoming and therefore we don’t intend to pursue the prosecution of the accused persons,” the prosecution said.

The prosecution further told the court that considering the ages of the accused persons, it would not be in public interest to pursue the charges.

The court heard that the prosecution had made the application to have the case withdrawn at the earlier possible time as the hearing of the case was yet to start and that it had demonstrated good faith.

But the defence said the prosecution had not presented a credible charge sheet before the court that was capable of being withdrawn.

The team led by Karua said it would demonstrate to the court that the arrests and arraignment of the elders was done contrary to the constitution.

“The bill of rights grants each person the freedom of religion, worship and conscience. The accused were arrested in a shrine, the most holy and revered shrine in the Agikuyu community, therefore this is a matter of culture and religion,” she said.

Karua said it was unfortunate that the elders were being accused of being in possession of fly whisks commonly carried by Agikuyu elders.

“Even the founding father Jomo Kenyatta and Jaramogi Oginga Odinga never left their fly whisks. This is a cultural item used by many communities as a harmless symbol of authority.”

Mungai said withdrawing the case under section 87(a) of the criminal procedure code would not protect the elders from being rearrested and charged with the same or different charges.

The accused, he said, were members of the Agikuyu community and the charges related to their cultural and religious rights.

“The prosecution has admitted that they don’t have sufficient evidence and therefore the accused should be given an absolute acquittal.”

Njiru said 11 similar cases are ongoing in Nyeri law courts and that the community would be filled with apprehension should the trend not be stemmed.

He said some of the items cited by the prosecution include the Muratina drink, a traditional drink brewed by elders, and which was recently declared legal by a Kiambu court.

While ruling on the matter, the magistrate released the elders, asking them to live in liberty and not fear being re-arrested.

But the defence team expressed their dissatisfaction with the conclusion of the case saying they will look for sections of the law that they can use to have the courts rule favourably on the matter.

“We are not satisfied with the ruling because it means other members of the community can be arrested and charged with similar charges. This is a sad day. It has shown that the government is wilfully harassing members of the Agikuyu community,” Karua added.

Kioni said such charges could discourage community members from visiting shrines over fear of being arrested.

“In Kiambu, we’re learning that four acres under Githunguri Kia Wairira shrine will be used for the affordable housing project. The same could befall Mukurwe wa Nyagathanga”.

Waguta Mwangi, one of the elders, said she has been visiting the shrine since her youth in the 70s and was surprised to be arrested.

“This was my first time to be arrested and it was shocking. We’re very grateful to our lawyers that this case is now over.”