Criminal Lawyer, Cliff Ombeta, watered down charges Interior CS Kithure Kindiki and the Director of Public Prosecution (DPP) Noordin Haji preferred against the controversial pastor, Paul Mackenzie, in the Shakahola massacre.
Speaking to Kenyans.co.ke on Thursday, April 27, Ombetta argued that it would be impossible for Haji and Kindiki to convict Mackenzie for terrorism, radicalisation and aiding individuals to kill themselves. Nearly 100 bodies were exhumed from the forest.
He trolled the duo, stating that the motive to prefer the aforementioned charges was ensuring the accused is not released on bail.
"DPP needs to go back to the chalkboard. The charges herein are only for the intention that the Pastor does not get Bail. It's like Haji is fetching water using a siever locally known as kichungi. I will not advise him on what to prefer," Ombeta claimed, further addressing the issue on his social media pages.
Both lay, and legal scholars canvased over the criminal matter, which Ombeta claimed that he would easily win.
Communications Consultant Njeri Thorne wondered how DPP Haji will sustain the charges, especially, how he would convince a judge that Mackenzie was a terrorist who was out to kill his followers through radicalisation.
She also agreed with Ombetta that Haji and Kindiki sought to deny Mackenzie bail through overburdening charges.
"Interesting approach. Definition of terrorism still ambiguous in most jurisdictions, so easy to fit in the crimes into scope of definition. But radicalisation charge is a slippery slope. Opening a can of worms. All religions have radicalisation elements," Thorne opined.
According to Thorne, the Kenyan legal setting was not diverse enough to accommodate other judicial free-thoughts.
"This is why the legal framework needs to evolve. Judges need room to maneuver new crimes. For example, if duty of care was introduced in the ruling it'd be manslaughter by gross negligence," Thorne argued.
To this end, Ombeta argued that it will be the responsibility of the State to adduce evidence that will convince the judges that Mackenzie was engaged in terrorism.
"The dead in this Pastor Mackenzie saga: Bodies are here, where are the souls? How do we prove that they are not in heaven? Where does the State get those witnesses?
"Is there a way of going to heaven and proving they did not reach there?" Ombeta asked as he warned ODPP to review the charges professionally.
However, city lawyer, Omwaza Ombati countered, stating that Mackenzie's actions constituted possible terrorist acts.
"Many people have contended that Pastor Mackenzie did not commit any offence. I refer you to the Prevention of Terrorism Act. He can be charged under the Act," Ombati asserted.
According to the Prevention of Terrorism Act, terrorism means an act or threat of action which involves the use of violence against a person, endangers the life of a person, other than the person committing the action and creates a serious risk to the health or safety of the public or a section of the public.
It also means results in serious damage to property, involves the use of firearms or explosives and the release of any dangerous, hazardous, toxic or radioactive substance or microbial or other biological agent or toxin into the environment.
"It is also the interferes with an electronic system resulting in the disruption of the provision of communication, financial, transport or other essential services," the Act adds.
Ombetta Solution
The lawyer argued that the protection ought to bring serious charges but also request bail denial on the grounds of interference of witnesses, Manckenzie's influence and his safety.
On Wednesday, April 27, Malindi Principal Magistrate Ivy Wasike issued DPP Haji with the orders and a search warrant valid for ten days.
Magistrate Wasika ordered detectives from the Directorate of Criminal Investigations (DCI) to access and seize title deed documents, motor vehicles, access bank details and other items linked to the charges levelled against the pastor.
She further directed lead investigating officer Joseph Yator to conduct the search warrant in the presence of Mackenzie's lawyers or their authorised agent.
“The search of the premises be conducted during daytime,” the magistrate directed.
