Suspect released on cash bail of 50,000 KShs

Behind the Mask

When a Kenyan radio station reported that a man had been arrested and charged with sodomy last week, there was alarm in the LGBTI community. BTM correspondent Melissa Wainaina spoke to lawyer, Monica Mbaru, to get the details of what actually happened and why the charge was changed.

Please give us some insight to the incident that affected a member of the LGBTI community? What were the circumstances and what were the allegations that led to an arrest?

On the morning of Friday, July 15 John* was arrested at his home in Nairobi, allegedly for sodomy. He was held briefly at Ngara Chief’s Camp [in Nairobi] and then forwarded to Nairobi Central Police Station in the afternoon. This was to avoid the constitutional holding limit that require any arresting person not to keep a suspect overnight while the police cannot hold such a person for more than 24 hours unless the arrest falls over a weekend.

John managed to call a friend on Saturday July 16 and we got the information on Sunday morning to assist him. I managed to meet the Officer Commanding Police Station (OCS) prior to seeing John and he alleged that the accused had greeted somebody along the streets, given him Sh20 (US$0.22) and “confused him.” He led him to a lodging [house] and sodomised him. He asserted that the arrest was made by the Ngara Chief’s Administration Police.

However, there was no recorded statement from the complainant, only the arrest had been recorded. The OCS summoned the investigating officer who indicated that the arresting AP was off duty at the time.

What is the progress of the case as of Thursday July 21, 2011?

John was charged at the Makadara Magistrate’s Court in Nairobi on Monday, July 18 with the offence of indecent assault as the complainant had not filed the necessary medical documents to confirm the sodomy allegations, maybe due to the fact it never happened or they had hoped John would simply pay a bribe and get the police to drop the case. Now that there was a lawyer giving attention to the case, the officers needed to have an offence.

What are the Kenyan legal strengths and/or challenges in regards to this case?

The challenge will be to prove the case of indecent assault, what exactly happened and the evidence available. So far the complainant has not written his statement and could use this opportunity to cook up some.

Another challenge is to frustrate the case with many adjournments, [a tactic] which investigating officers [are known to] use to avoid taking responsibility for illegal detentions and malicious prosecutions and just ‘punish’ the accused for hiring a lawyer instead of either paying [them] off for the closure of the case or admitting to the offence.

The police did not expect that he would get a lawyer. My presence at the station caused such a huge commotion.

What is your way forward in this particular case?

The accused is out on a cash bail of Sh 50,000 (US$555). He was released on July 20 upon a deposit of the cash bail.

The case comes up for mention on 1st August 2011 and the hearing date set for 3rdOctober 2011.

Any other pertinent thoughts?

As the LGBTI community in Kenya seeks to address equality and non-discrimination based on the new constitution, a case like John’s gives that opportunity to address decriminalization of same-sex behavior. As it stands today the sodomy law potentially creates a gap where blackmailers and extortionists use the law to their advantage.

John’s case would form a good test case to challenge these laws and the potential conflicts it creates in addressing personal freedoms and rights as well as other public health concerns.

Further, an arrest based on one’s perceived or real sexual orientation sets in motion other human rights violations most specifically the invasion of privacy.

It seems clear in this case that John has suffered clear violations of his rights including being in custody for six days. He is being charged with a crime that is difficult to prove without having to violate individual freedoms for instance in order to “catch one in the act” it would necessitate an invasion of privacy.

*Not his real name.

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