Cult leader Paul Mackenzie, through his legal counsel, Wycliff Makasembo, has challenged the procedure by which the government is trying to incarcerate him and 94 other co-accused persons.
Last month, the Office of the Director of Public Prosecutions applied to oppose the release of Mackenzie and his associates on bond terms, until the matter in which they are charged with 238 counts of manslaughter is heard and determined.
The 238 people are out of the 429 whose bodies were exhumed from Shakahola Forest after they allegedly fasted to death on the instructions of Mackenzie.
In their application, ODPP gave five compelling reasons to deny the suspects bond, saying they were flight risks, lacked known permanent abodes, and might interfere with witnesses.
The ODPP further posits that the severity of the sentences facing Mackenzie and the 94 others will make them abscond court hearings because they are aware of the strength of the prosecution case.
State Counsel Victor Simbi told the Mombasa Chief Magistrate’s Court that Mackenzie is still very influential among his followers, and should not be released on bond.
“The first accused person and the others before the court managed to convince hundreds to leave their homes and come to the forest. If someone influences you to starve to death, that is the ground upon which there is a likelihood of witness interference,” Simbi said.
He added, “Some of the state witnesses in the case are children of the suspects, and they are very vulnerable.”
On Tuesday, while they were being arraigned, the suspects were on a one-week hunger strike to protest against their continued detention, since they were arrested between April and May last year.
They were visibly weak and could barely walk, prison wardens had a difficult time assisting them from the prison vehicles to the basement cells of the Mombasa Law Court building.
As of Tuesday, Mackenzie had already spent 293 days in police and prison custody since his arrest on April 15 last year. His associates have also spent more than 270 days behind bars.
While opposing their continued detention, Makasembo argued that the office of the DPP made procedural errors in applying to oppose the release of Mackenzie and others on bond terms.
Key among the issues he raised were a lack of notice of motion to accompany the affidavit and a lack of authority from the Director of Criminal Investigation Mohammed Amin, to direct Chief Inspector Raphael Wanjohi to swear an affidavit on his behalf.
“Like in this case, the DPP ought to have filed a notice of motion, accompanied by an affidavit from the investigating officer. However, in this case, we only have an affidavit, and no notice of motion on record,” Makasembo said.
He added, “Chief Inspector Wanjohi said he had sworn the affidavit on behalf of one DCI, Mohammed Amin, but there is no authority from Amin directing or confirming the same.”
He also questioned the existence of the DCI Homicide Unit, which is tasked with investigating the Shakahola massacre, saying in National Police Standing Orders, such a unit is not mentioned.
He also said the application by the DPP is fictitious and devoid of any sufficient evidence to continue holding the suspects in prison custody.
“This application of continued detention is meant to torture my clients mentally and physically. I ask the court to give stringent conditions and bond terms, and they will abide by the law. Just like Moses in the Bible, I ask the court to let my people go,” Makasembo said.
However, in a rejoinder, Senior Assistant DPP Peter Kiprop said the application on the continued detention of suspects cannot be challenged under the procedure of law.
“This is a criminal proceeding, not a civil case. Therefore, the submission of a notice of motion only applies to civil proceedings. Secondly, the law in criminal proceedings provides that justice must be administered without undue focus on procedural technicalities,” Kiprop said.
He said the Director of Criminal Investigation is allowed in law to form any unit within his docket to help in investigations.
“Makasembo cannot purport to say he can arrange the house of another person. DCI has the authority and mandate to form any unit under his docket,” Kiprop said.
Mombasa Chief Magistrate Alex Ithuku is expected to deliver his ruling on this application on March 5.
