There was drama at the Milimani Law Court as a tense legal battle ensued between lawyers from the Office of the Director of Public Prosecutions (ODPP) and lawyers representing two police officers accused of playing a role in the death of teacher and blogger Albert Ojwang.
Tempers almost boiled over when Central Police Station, Nairobi, OCS Samson Talaam and Constable James Mukhwana, through their lawyer Danstan Omari, moved to petition the High Court to block their prosecution and a prayer to hold them in jail for 21 days.
Omari was adamant that the arrest of Talaam by the Independent Policing Oversight Authority (IPOA) were not only premature but also legally flawed.
According to Omari, an inquest should have been held before any criminal proceedings were initiated against his clients.
When Omari stood to cross-examine Abdirahman Jibril, the Senior Assistant Director, Investigations of IPOA, who provided an affidavit defending the prayer to hold the two police officers for 21-days, tensions reached a breaking point. He wanted clarification on the legal foundations of the prayer.
Omari then went on to point out flaws in IPOA's affidavit, pointing out multiple contradictions that, in his opinion, rendered Talaam's prosecution incorrect.
"From your affidavit, confirm the place of death is Central Police Station. You have confirmed the scene of death is at the police cell," Omari argued.
Omari then referenced several points from IPOA's report tabled before the Senate last week, which the prosecution insisted was not in the affidavit presented in court on Monday.
With Omari clamping down on prosecution, prosecution urged restraint, saying, "We plead with our colleagues to remain respectful. What we are asking is, as the court has suggested, to put the law to the witness. Don't ask the witness to refer to the law. We do not mind if you read the law to him and ask questions."
Omari fired back with yet another pointed question: "Give me the law that gives you (IPOA) the mandate to investigate the person who dies in a police cell."
Caught off-guard, Abdirahman, said, "We did not anticipate that a witness of IPOA would be made to read the law. We didn’t carry a copy of the IPOA Act."
Omari then accused the prosecution of practicing “selective amnesia when it suits their convenience,” drawing murmurs in the court.
The Director of Public Prosecution filed an application to detain OCS Talaam for an additional 21 days to allow IPOA to complete its investigation into Ojwang's suspicious death - a move which was opposed by Omari.
While prosecution argued that Talaam's detention was for the safety of witnesses, Omari was adamant his client was not familiar with any witnesses.
"Do you need my client in cells for the purpose of analysing the phone? Is there any role he is required to play in forensic analysis?" Omari further asked, leaving the prosecution lost for words.
"It's not only about phone analysis. It is to complete investigations," the prosecution, through Jibril, insisted.
