Lawyers representing the 22 elders who were arrested at Mukurwe Wa Nyagathanga last December have opposed the Director of Public Prosecution's move to withdraw the case while investigations into the matter continue.
The elders were arrested at the shrine while conducting prayers, but it was purported that they were performing rituals and administering oaths.
A battery of lawyers, led by senior counsels Martha Karua and Ndegwa Njiru, said they perceive mischief on the part of the prosecution in seeking to withdraw the case, especially considering that the investigations are yet to be concluded.
"Upon careful perusal of the file, I find that the grey areas that the police were supposed to cover remain unresolved to date," a letter by the Senior Assistant Director of Public Prosecution for the Central Region, Jackline Gichana stated.
The letter further stated that in one of the response letters by the county government, it was not indicated whether the group had the authority to access the shrine for any activities.
The director directed that the matter be withdrawn under Section 87(a) of the Criminal Procedure Code to allow the investigating officer to address the grey areas.
Karua criticized the move, saying the prosecution wants to hold the accused at ransom and can arrest them any time after concluding the investigations.
She said the legal team is working to raise a preliminary objection to the charges pressed against the elders, adding that their ultimate goal is to have the case thrown out completely.
“The prosecution cannot withdraw the case whose charges are defective and that’s why we are opposed to the withdrawal,” she remarked.
“We are taking this matter seriously and will argue it out in line with the constitutional provisions to ensure justice prevails” she added.
Cult or profiling?
She further claimed that this is a case of ethnic profiling of the Kikuyu community and, by extension, the Mt. Kenya community, adding that it is a test for the people.
“If our culture and religion is going to be criminalized then it means that as people we are being denied our rights that are in the constitution and we are going to resist it with all our might and legal apparatus,” Karua added.
Njiru, on his part, said that the fact the DPP identified gaps in the case indicates that there was no solid evidence to charge the elders.
He said that the withdrawal of the case by the DPP would ensnare the elders and taint their name as criminals, and they can only be vindicated after the matter is concluded or the case is thrown out.
“We are here as a matter of rights and we shall demonstrate this to the highest level that we can because this case is not for the 22 accused persons but for the entire community,” Njiru said.
During his recent visit to Murang’a, Deputy President Rigathi Gachagua called for the withdrawal of the case, stating that there was no substantial evidence indicating that the elders were involved in anything illegal.
"Gachagua stated that at the time when the elders were arrested, there was a wave of regrouping within the illegal sect, and they were simply caught up in it."
He, however, said he would organize a meeting with all the elders and the security agents to discuss the cultural practices that are allowed and those that are illegal.
