BY SAM ALFAN.
Korogocho MCA Absolom Odhiambo is a free man after a Nairobi court ruled that the police arrested him under a non-existent law.
Milimani Magistrate Gilbert Shikwe ruled that the section of the law, which the police sought to charge the lawmaker was declared unconstitutional by three-judge bench of the High Court three years ago.
The magistrate upheld objections by lawyer Danstan Omari, who represented the MCA, stating that the police were seeking to detain Odhiambo for more days yet the section 96(a), the prosecution was relying upon was quashed by Justices Jessie Lesiit, Luka Kimaru and John Mativo.
The three judges have since been elevated to the Court of Appeal.
The magistrate said the application to continue holding the suspect for seven days, to enable the police complete investigations into allegations of incitement to violence, cannot be issued on a defective law.
The High Court declared as unconstitutional the provision of Kenya penal code on incitement to violence and disobedience of the law.
The section was challenged by UDA chairman and former Machakos Senator Johnstone Muthama, who was facing hate speech-related charges.
The judges held that the said section of the Criminal Procedure Code(CPC) infringes and transgresses on presumption of innocence of an accused person in a criminal trial.
The MCA was arrested by officers from the Directorate of Criminal Investigations, three days after the National Cohesion and Integration Commission (NCIC) summoned him over remarks he made at Kamukunji during the Azimio La Umoja rally.
He was presented to court on Monday but the police through miscellaneous application asked the court to detain him for seven days so that the police can retrieve any possible inciting messages from his phone and also record statements from witnesses and the suspect.
