A large contingent of anti-riot police has been deployed in Mombasa town ahead of a High Court ruling on the proscribed Mombasa Republican Council.
The police have kept vigil outside the Mombasa Law Courts where three High Court judges John Mwera, Mary Kasango and Francis Tuiyott are set to give the landmark verdict Wednesday.
Armed with guns and teargas canisters, the policemen – some of them tagging sniffer dogs along - kept a close eye on hundreds of MRC supporters trooping to the courts since morning to hear the verdict.
Everyone entering the court premises is being subjected to thorough and mandatory screening at the entrance to the High Court.
The case in which MRC is challenging its proscription by the government two years ago is one of the two the group has filed against the State.
In the second case, still pending in court, the group wants Independent Electoral and Boundaries Commission (IEBC) barred from conducting election-related activities in the region pending a court ruling on its request to have a referendum conducted at the Coast on whether the region should secede from Kenya.
Threat to national security
Justices Mwera, Kasango and Tuiyott settled on Wednesday's ruling after hearing heated submissions by the government, which defended its move to proscribe the group terming MRC a threat to national security.
MRC on the other hand maintained that the government relied on insufficient and unsupported evidence and allegations in proscribing them.
MRC members Messrs Randu Ruwa, Robert Tukwatukwa and Nyae Ngao moved to court in 2010 challenging a gazette notice proscribing their group and want the court to prohibit the Internal Security minister from interfering with their lawful activities.
They also want the court to issue directions that will enforce the proper administration of justice in regard to their rights, which they claim have been violated.
In 2010, the minister and the Attorney General declared the MRC among 32 other groups as illegal and warned the public against dealing with them.
During the submissions, State counsel Emmanuel Bitta said that MRC’s slogan ‘Pwani si Kenya’ and its agenda were detrimental to the territorial integrity of the country, hence the Internal Security minister was right to outlaw the group.
“When a state officer makes a public policy decision, it does not go against the Constitution. So the minister was right to ensure the principles are observed as well to safeguard the interests of the country,” he said.
"Patriotism and national security are being questioned by MRC in their rallying call since they do not recognise Kenya as a state. So the minister was mandated to act the way he did.”
Further, he said that MRC was discriminating by stating that it did not recognise outsiders.
“You cannot be called a stranger in your own country. It is disrespectful,” he said.
Mr Bitta told the judges that former Internal Security Permanent Secretary Francis Kimemia’s affidavit provided a clear basis that the activities of the group were questionable and detrimental to the country, facts which have not been contravened or challenged.
“The State is charged with the responsibility of ensuring that a conducive environment for enjoyment of rights prevails but because there was apprehension on MRC’s activities, the government had to stop them from pursuing their agenda,” he said.
He noted the report on the 2007/2008 Post Election Violence (PEV) also known as the Waki report revealed many issues, one being a report by the intelligence service which revealed that there were groups agitating against outsiders, and the agenda was to drive the group out of the Coast region.
He added that from other intelligence and security reports, it was clear that the group was a resemblance of an organised crimes unit which needed to be prevented from pursuing its agenda.
Mr Bitta also noted that MRC had not sought to be registered as a society or a political group, hence they were adamant to operate outside the framework of the law.
He also said that the group’s call for secession cannot stand since under the international law, the right to secede only applied to colonies, and Kenya was not one as it had already achieved a right to self determination.
Additionally, he said that for the applicants to claim that they had suffered historical injustices, yet they passed the Constitution two years ago was in bad light.
“Whatever finding this court comes up with must for the benefit of the people who passed it,” he said.
In reply, MRC lawyer Steve Kithi said that it was unlawful for the State, he said to purport that it was preventing organised crime to achieve national security, yet it was harassing and suppressing his clients.
“MRC has not threatened anyone’s rights. It has no desire to assault or evict and its manifesto is clear that it does not propagate for violence,” he said.
He added that although the State had made extensive reference to the PEV report, there was no mention of MRC anywhere in the 518 page document, but there was mention of Coast and people from the region.
“These references however were not made into the context of MRC demands and the State should not rely on someone’s findings because there is no nexus on the report and MRC which was banned in 2007,” he said.
He also said that while the State had made outrageous statements concerning the group and its purported unlawful activities and even annexed press reports suggesting that the group was behind some criminal activities, no member had been summoned to record a statement.
Mr Kithi also accused the State of referring to both the Waki and Akiwumi (2002) reports to suppress MRC who were not even in existence by the time of publication, saying that the reports clearly stated that state officers had role in the violence yet no one has ever been arrested.
“The PEV report cannot be used to support the minister’s decision to declare the group illegal,” he said.
He wondered why the government was still allowing MRC members to exercise their freedom of expression and assembly if had been proscribed, noting that it (government) should come out clear on the limitation of rights.
“Even apartheid in South Africa was better compared to our case because our limitation to rights is pedestrian,” he said.