A Milimani Chief Magistrate’s court on July 3, freed 185 demonstrators arrested in Nairobi on personal bonds.
Trial magistrate Wandia Nyamu ordered the 18 minors who were among the suspects to be released immediately on a personal bond of Sh10,000 while the rest were released on a personal bond of Sh50,000.
While releasing the suspects, Nyamu said that the prosecution did not present a charge or a holding charge to accompany the application.
The Director of Public Prosecution through 10 miscellaneous application files petitioned the court to allow them detain the 185 anti-Finance Bill 2024 protesters for 21 days pending investigations into various offences, including malicious damage of properties, breaking into a building, assaulting a police officer and obstructing police officers in the execution of their duties.
“The state wants to place the respondents in custody to enable them commence and complete investigations, it will not do for the prosecution to present a person who has been arrested in court and seek it’s continued detention without a charge or a holding charge being lodged in court,” ruled the court.
Nyamu said the prosecution indirectly infringed on the rights of the children to be protected from inhumane treatment a non derogable right by not feeding the kids who were fainting in court since their arrest.
“The framers of the Constitution did not put the explicit provisions for the treatment of children whether in conflict or not in the constitution for nothing.”
“It was purposed that children as vulnerable members of the society and the future of the country be treated humanely and protected,” Nyamu said.
The prosecution argued that rights accorded to children are not absolute however the court held that detainment of children should be a last resort and they should be kept for the shortest time separate from adults.
“It is this attitude of the state that corrodes the provision of the constitution that’s meant to protect Kenyans,” said Nyamu.
“It does not matter that age has not been determined, continued Nyamu, the minute a child is identified all the rights accorded to them starts running.”
The magistrate said that the state is “hell bound to catch criminals that it forgets it has a duty to protect its own people”.
“The people whose names have been called out as children ought to have been taken to an age assessment before being brought to court , fundamental rights and freedoms cannot and should not take a back sit in pursuit of criminals,” ruled Nyamu.
Nyamu further pointed fingers at the prosecution for seeking custodial orders to hold the suspects further after failing to attend to the ones who were injured while in their custody.
If this trend continues, Nyamu said, it will erode all the gains made in the advancement of human rights and fundamental freedoms as provided by the bill of rights since the constitution was promulgated.
“Where the prosecution fails to pass the standard test then those rights especially the right of liberty cannot be taken away in the face of such an infringement,” ruled Nyamu.
The suspects will be released from Gigiri, capital hill, Muthangari and Kilimani police stations after they have given their details to the various investigating officers.
The matter will be mentioned on July 17.
