Inspector-General of Police Joseph Boinnet and the Director of Criminal Investigations George Kinoti have been ordered to appear in court today to explain circumstances surrounding their failure to release Nasa activist Miguna Miguna.
High Court judge Luka Kimaru gave the order yesterday when a group of more than 10 lawyers appeared before him to protest failure by the State to release their colleague, who was granted bail on Friday but was still locked up.
Mr Miguna was arrested on Friday.
Earlier Monday, Justice Kimaru had ordered the IG and DCI to personally produce Mr Miguna, who is also a political commentator, in court that afternoon. The judge further asked the two to explain why they should not be held liable for disobeying an order regarding Mr Miguna’s release.
“From the submissions presented, it appears that the police, in detaining Mr Miguna, are operating outside the Constitution and the law,” ruled Justice Kimaru. “In the circumstances, therefore, to remedy the situation, this court orders the IG and DCI to appear before me in person at 9am together with Mr Miguna so that he can be dealt with in accordance with the law.”
The judge directed that if the two did not want to appear in court, they should have Mr Miguna released yesterday.
Before the ruling was issued, lawyer John Khaminwa narrated how he went to Lari Police Station in Kiambu County to check on Mr Miguna but only found a contingent of heavily armed police officers manning the facility.
On meeting the local OCPD, Dr Khaminwa said, they were told that Mr Miguna was not being held there.
“They told us that the heavy police presence was merely for guarding the station from an attack by the public following his arrest,” said Dr Khaminwa. “The OCPD also told us the heavy police presence was to deter locals from stoning us. I, however, did not see a threat of being stoned by any member of the public as alleged.”
Giving examples of individuals who were found dead in unclear circumstances during arrest, he said the police and the State had acted contrary to the provisions of the law with regard to the continued detention of Mr Miguna.
DEAD OR ALIVE
He pointed out the case of Kiambu businessman Stephen Mbaraka Karanja, who, in 1987, was arrested on claims of robbery by the police but a quest to have him produced in court dead or alive led to a gruesome exercise where officers exhumed 19 bodies at the Eldoret Municipal Council cemetery in search of his remains.
Justice Derek Schofield had ordered police to produce his body and cited the commissioner of police and the CID boss for contempt of court before resigning from the Judiciary.
The lawyer, who is among the longest-serving lawyers still practising, also pointed out the case of human rights lawyer Willie Kimani. A case on his arrest and murder is in court.
Dr Khaminwa also told the court that Mr Miguna’s family was anxious about its bread winner and that sources from the diplomatic community have also been questioning his whereabouts.
Nasa leader Raila Odinga (centre) Senator James Orengo (left) and businessman Jimi Wanjigi (right) outside the High Court in Nairobi on February 5, 2018. PHOTO | MAUREEN KAKAH | NATION MEDIA GROUP
“At law school, we were taught that when a judge issues an order, whether correct or not…you made an order for him to be released; that order must be obeyed,” said Dr Khaminwa.
Insisting on the need to obey court orders, the veteran lawyer pointed out that President Uhuru Kenyatta has always emphasised that no one is above the law, including himself.
“We must obey” said Dr Khaminwa. “Obedience is a quality we can’t negotiate with magistrates and judges. When they make an order, it must be obeyed.”
The elderly lawyer also recalled his younger days in school, telling the court that he used to sing a song in the chapel which he vividly remembers has the words “trust” and “obey”.
He went ahead to point out instances when court orders have been blatantly ignored, such as the one on television shutdown, besides Mr Miguna’s case.
“To obey is part of our Constitution, international law and authorities,” said Dr Khaminwa. “We must uphold this. No one is above the law. I urge this court to make a step forward in this matter by finding that the IG is guilty of contempt.”
As Mr Miguna legal team protested the disobedience of the order on his release on a Sh50,000 bail granted by High Court judge James Wakiaga, a state lawyer said the orders were effectively served on the DCI, IG and the Attorney-General and that the Office of the Director of Public Prosecutions (DPP) was keen to see the matter resolved.
Nasa leader Raila Odinga and businessman Jimi Wanjigi were in court.