The Korogocho MCA, Absalom Odhiambo, has been released after a Nairobi court dismissed an application by the police seeking to detain him for seven days. The application, filed on allegations of hate speech, was ruled by Milimani Principal Magistrate Gilbert Shikwe as not based on any legal provision.
Shikwe criticized the Attorney General for failing to present an amendment of the law, as directed by the High Court, calling it a failure to fulfill his duties. The defense, led by Danstan Omari, argued that the section under which Odhiambo was arrested was unconstitutional and no longer recognized as a hate speech offense.
The case took a new turn when the defense presented a three-Judge bench ruling from 2015, challenging the constitutionality of incitement charges in the Penal Code. The court was informed that despite the direction from the High Court, the section remained unamended and the lawyer argued that the court had no authority to detain the MCA.
The court agreed with the defense and adjourned the case until 2 pm to determine the fate of the MCA. The police had argued that they needed seven days to retrieve possible inciting messages from Odhiambo’s phone and record statements for the prosecution.
Odhiambo was arrested while waiting to talk to officials from the National Cohesion and Integration Commission, who had summoned him over remarks he made during a rally hosted by ODM leader Raila Odinga. During the rally, he allegedly made inciteful remarks and asked Raila to allow them to forcefully eject William Ruto from the State House.
The case continues to develop, with the court set to make a determination on whether to allow the seven-day detention or release Odhiambo. The outcome of this case is a reminder that the law must be followed and hate speech will not be tolerated in Kenya.