A Nairobi Milimani Chief magistrate will on June 20, rule whether to release police constable James Mukhanwa linked to the murder of blogger Albert Ojwang who died in police custody at Nairobi’s Central police station.
Magistrate Gilbert Ondieki further ordered Mukhanwa to be detained at Capitol Hill police station.
The Independent Policing Oversight Authority (IPOA) filed an application seeking to detain Mukhanwa for 21 working days pending investigations.
Ojwang was arrested on June 7, by police officers from the Directorate of Criminal Investigations (DCI) in Homa Bay and transferred to Nairobi, where he was booked into custody.
He was pronounced dead hours later after being found unresponsive in a police cell and rushed to Mbagathi Hospital at around 2:00 a.m. on June 8.
He had been assaulted while in custody.
In a miscellaneous application filed at the Milimani Chief Magistrate’s Court, IPOA is seeking to hold police constable Mukhwana, who was on duty as the cell sentry on the night of the incident.
According to IPOA, there is strong evidence linking Mukhwana to the planning and execution of the fatal assault on Ojwang.
“Our preliminary investigations have revealed that there is a high likelihood that the Respondent, together with other persons at the central police station, brutally assaulted the deceased inside the cells, leading to his death,” read the court documents.
A postmortem report revealed that Ojwang died from head injuries caused by blunt force trauma, neck compression, and multiple bruises across his body.
IPOA’s investigations further indicate a coordinated attempt to cover up the incident, including alleged falsification of records and tampering with CCTV footage at the police station.
According to Abdirahman Jibril, IPOA’s Senior Assistant Director of Investigations, officers at the station allegedly disconnected and reformatted the station’s CCTV system in the early hours of June 8, hours after Ojwang’s death, in an apparent attempt to erase evidence.
Jibril told the court that Mukhwana had regular communication with other officers at the time of the incident, and that witnesses had confirmed his active role during the night Ojwang died.
“There is a high likelihood that the Respondent, jointly with other persons, at central police station and at large, were therefore involved in the planning and execution of the brutal assault of the deceased at the central police station, leading to his death,” said Jibril.
Ojwang had been arrested following a complaint from Deputy Inspector General of Police Eliud Lagat, who accused a social media user operating under the name Pixel Pioneer of publishing false and malicious content targeting him.
IPOA allege that Ojwang was identified as the alleged account holder and became the subject of a DCI investigation that led to his arrest.
Jibril argued that releasing the suspect on bail would jeopardize ongoing investigations.
He alleged that key suspects remain at large and several critical documents and devices are yet to be retrieved.
IPOA also claims that the suspect may be in danger if released on bail due to the “considerate public anger and outrage” elicited from the mater
“Moreover, because key persons involved are police officers wielding police powers, who from preliminary investigations, have engaged in a web of complex cover up employing the blue code of silence, we require time to unravel that complex web through conduct of investigations and if released on bail the Respondent is highly likely to interfere with the investigations,” argue Jibril.
The defence lawyers, however, vehemently opposed the application by IPOA seeking to detain Mukhanwa for 21 days.
They argue its unconstitutional, discriminatory, and unsupported by evidence.
Led by advocates Danstan Omari and Stanley Kinyanjui, the defence team told the court that no compelling reasons had been presented to justify denying the suspect bail.
They argued that the constable voluntarily submitted to the authorities when summoned.
The defence claim that IPOA’s claims that the constable could interfere with witnesses is speculative and lack tangible proof.
“There has not been any material placed before the court to show an attempt to interfere with investigations other than mere apprehension that the respondent is likely to interfere with investigations,” Omari said.
“The only reason being advanced by the applicants in this case is the fact that the respondent is a police officer, if that is not discrimination what is.”
They questioned why IPOA would place him in a police station manned by fellow officers if they truly feared a so-called “blue code of silence.”
“A mere statement that the police have a blue code of silence is not factual, it is a statement made to hoodwink the court,” said Omari.
“The applicant IPOA is seeking 21 days to detain the respondent in a police station, not manned by IPOA staff manned by the same police officers, at one hand IPOA is confident with the police that remand him in police station in the other hand it is telling you the police have a blue code of silence you can’t speak from both sides.”
Kinyanjui argued that pre-trial detention should be the last resort and should not be driven by public pressure or political interests.
“Pretrial detention such as the one the court is being invited to make should be the last resort, there is no where that politics of the day inform bail and bond guidelines,” he stated.
According to Kinyanjui the prosecution failed to demonstrate that the suspect is a flight risk.
The defence further urged the court to treat the constable equally, pointing out that even powerful individuals like Cabinet Secretaries and former leaders charged at the International Criminal Court had been released on bail.
“The fear of the State is a fear of a police constable ,” said Omari.”
“The state must show by material that the fear they have is not mere apprehension.”
The prosecution on their end opposed the bail application.
“The deceased died in a police cell. This is confirmed by the medical report,” the prosecution told the court, adding that the suspect was on duty at the time.
Prosecution argued there had been early attempts to derail investigations, including efforts to destroy CCTV footage.
“A person who tries to destroy evidence will likely interfere further,” prosecution said.
The prosecution say key witnesses are fellow officers known to the suspect.
“Interference can take any form,” prosecution submitted.
They urged the court to deny bail as investigations are still at an early and sensitive stage.
“The days sought are reasonable. There’s no mischief in this application.”
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