Mombasa activists sentenced to probation over Kemsa scandal prostest

Five activists and a matatu tout who were arrested for protesting against the embezzlement of the aid fund to fight the Covid-19 pandemic have been handed a six months’ probation.

This means that the suspects are prohibited from committing a similar crime before the expiry of the six months. Should they go against this, they will be arrested and handed a custodial sentence over the same offense.

Mombasa Senior Resident Magistrate Ritah Amwayi imposed the sentences on the four after pleading with the court for lenient jail terms claiming that they had followed the law to picket against corruption.

“The accused persons are sentenced each to serve six months’ probation for each count. The sentences will run concurrently. They have 14 days right of appeal,” the magistrate said.

They include Muslim for Human Rights rapid response officer Francis Auma, Nato Michael (Haki Kenya), Felix Otieno (Ajenda Kenya), Kiti Nyale (Matatu tout), Lucas Cosmus Fondo (Local Empowerment for Good Governance), and Mr Tirus Makumi of Youth League Organization.

The six were found guilty of prohibited gathering and failing to keep a physical distance during the demonstration they participated in August 2020.

The suspects were charged with engaging in a prohibited gathering contrary to rule 7(1) as read with rule 11 of the Public Health (Covid-19) Restrictions of Movement of Persons and Related measures ) Rules,2020.

The particulars of the offense are that the six jointly engaged in a prohibited gathering during the restricted period by engaging in a public gathering.

The six faced the second count of failing to maintain a physical distance of not less than one metre from another in public contrary to the law.

They are also accused of knowingly and negligently failing to wear a face mask during the covid-19 restriction period, thereby exposing themselves to the health risks of contracting or spreading the coronavirus disease.

They denied the offenses that the state said they committed in August 2020 along Digo road in Mombasa.

During the hearing of the case, the suspects defended themselves noting that they had informed the police as required by the law before holding a demonstration to protest against embezzlement of public funds meant to fight the covid-19 pandemic.

They also told the court that they had put on their masks, maintained social distance, and that they adhered with all Covid-19 protocols as well as the constitution.

They told the court that at the time of their arrest, they had their masks on and that the demonstration was within the law, having served the police with the notice to picket.

“It was a legal gathering,” Mr Auma said. The activists blamed the police for failing to respond to the notice to picket that they had served them with ahead of the demonstration.

“The police did not give us any response.  We went ahead to demonstrate only to be arrested during the process,” he said.

His sentiments were echoed by his five colleagues who blamed the police for only responding to the peaceful demonstration rather than the notice that had been issued to them prior to the protest.

The reports that billions of shillings had been stolen through irregular procurement at Kenya Medical  Supplies  Agency (KEMSA)  sparked the protest that was also witnessed in other parts of the country.

However, after hearing the case, the court found that the state had proved its case beyond reasonable doubt that the suspects participated in a prohibited gathering.

The magistrate noted that the suspects knew of the covid-19 restrictions but proceeded to organize the demonstration despite there being other ways of presenting their grievances.

“I find them guilty of the offense of failing to maintain a physical distance of not less than one meter from another person. They are also guilty of demonstrating without first getting permission,” the magistrate said.

Ms Amwayi however acquitted the six on the offense of failing to wear face masks noting that the state did not prove this offense as required by law.

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