The Office of the Director of Public Prosecution intends to appeal against the decision to acquit Mombasa Woman representative Mishi Mboko of incitement to violence and hate speech charges.
Senior Assistant DPP Alexander Muteti said having admitted into evidence the DVD and its transcript capturing Ms Mboko’s utterances, the court had sufficient material to analyse and find incendiary remarks.
“The court misinterpreted the law on ethnic hatred….whereas there was evidence from a person in the meeting as to which communities the words were directed at,” Mr Muteti said.
Mr Muteti further said the DPP, Mr Keriako Tobiko, will be challenging the basis upon which the court found the charge to be duplex (having two parts) yet the particulars were in line with the evidence.
Mombasa chief magistrate Julius Nang’ea acquitted Ms Mboko on Friday, ruling that the prosecution had not established a strong case.
Mr Nang’ea pointed out that there was duplicity in charging the accused on the first count of incitement to violence.
He said the charge, being duplex, causes prejudice and embarrassment to the accused in the planning and preparation of her defence.
The magistrate rule that the utterances in the video cited by the prosecution do not amount to incitement to violence.
“A revolution does not necessarily entail the use of violence. Sovereignty possess with the people as stated in the Constitution. The use of the two words per se was not inciting in the circumstances.”
According to the court, in the second charge there was no evidence that a particular community was targeted.
“I watched and listened to the video and heard the speaker, she never mentioned the Kikuyus and Kalenjin communities, which the prosecution witness thinks they were referred to,” the magistrate added.
He also said the video recording device was not produced as an exhibit and the person who took the video was not called to testify.
Ms Mboko termed that the court’s decision as a victory and appreciated the efforts of her lawyers: Senior Counsel James Orengo and Jared Magolo.
The statement under interrogation was: “Kenyans are going to bring revolution for this country. Enough is enough. We are tired as Kenyans! Revolution is with the people! The sovereignty is with the people! Revolution is with the people! People’s power! People’s power! People’s power!”
The prosecution said the statement amounted to incitement to cause a breach of peace and disobedience of the law.
The other statement is: “There are two tribes that think they own this country and we want to tell them chuma cha wanacho.”
The words allegedly intended to provoke feelings of contempt and ethnic hatred.