Phylis Omido

On 11 September 2012, environmental rights defender Ms Phylis Omido appeared before a magistrate at the Mombasa Law Courts, as the prosecution presented their third and final witness in the trial of the human rights defender for alleged “incitement to violence” and “unlawful assembly” in connection with a peaceful protest she helped to organise in April 2012.

A representative of Front Line Defenders was in attendance.

Phylis Omido is a community organiser in Mombasa and founder of the Centre for Justice and Environmental Action, a young organisation focused on promoting environmental justice in Kenya's coastal region.

At the 11 September hearing, the prosecution called Inspector Michael Wanjohi to the witness stand. Michael Wanjohi is a police officer in charge of the crimes section at the Changamwe Police Station who reportedly participated in the disruption of the protest in April and the arrest of 17 protesters, including Phylis Omido.

In his testimony, Michael Wanjohi claimed that the arrest and subsequent arraignment of the defendants were prompted by credible information that the police had received suggesting that Phylis Omido and her fellow protesters had the intention of causing violence when they organised their “unlawful demonstration” in April.

However, Michael Wanjohi appeared not to have any evidence that may have led the police to believe that the protesters intended to commit a violent crime. He noted that he had found the protesters in Changamwe, “standing” and “shouting” as they held a number of placards that denounced pollution believed to be caused by EPZ Metal Refinery Ltd, a nearby battery-recycling factory. From the words that appeared on some of the placards, namely “WHO LICENSED THE KILLER?” or “NEMA*, IS THIS NOT POLLUTION?”, the inspector and his police colleagues assumed that the protesters intended to cause violence at EPZ Metal Refinery. They thus arrested the 17 protesters before taking them to the police station. “The rest of the protesters”, Inspector Wanjohi testified, “managed to escape and were never arrested.”

Under cross-examination, Inspector Wanjohi admitted that Phylis Omido and her fellow protesters were not violent and carried no weapons during the disrupted demonstration; but when pressed he claimed that there was a possibility that their demonstration could turn into a riot. He further acknowledged that he did not conduct a thorough investigation into the defendants' alleged intention to incite violence before bringing charges against them. Regarding the “unlawful assembly” charge, the witness explained that this was justified by the fact that the defendants could not produce a formal permit authorising their demonstration.

Phylis Omido's defence team highlighted discrepancies between the facts as described by Inspector Wanjohi and the nature of the charges brought against the defendants. According to the defence, nothing in the facts of the case could have warranted the charge of “incitement to violence” under section 96 of the Kenya Penal Code, particularly because there was no indication that the defendants intended to cause injury or destroy property. Similarly, the defence argued that the charge of “unlawful assembly” was unjustified, as Article 37 of the Kenyan constitution grants every Kenyan “the right, peaceably and unarmed, to assemble, to demonstrate, to picket, and to present petitions to public authorities.”

According to the defence, this constitutional provision takes precedence over laws which place restrictions on the right to assemble which were in place prior to the enactment of the Constitution. In any case, these pre-existing laws do not stipulate that permission must be granted to stage a peaceful protest. Although it was previously necessary to obtain a licence in order to hold a public assembly, the Statute Law (Repeals and Miscellaneous Amendments) Act 1997 did away with this requirement, instead stipulating that the organisers of such assemblies must provide prior notification to the authorities.

In this case, two days prior to the demonstration, Phylis Omido and nine of her colleagues brought a letter to the office of the Officer-in-Charge of Station (OCS) in Changamwe notifying him of the peaceful protest. As the OCS was not there at the time, the letter was left with a police officer who was present. Later that day, Phylis Omido called the OCS to check whether he had seen the letter, but the OCS responded that he could not give them permission to go and cause a disruption. Phylis Omido replied that they would go ahead with their plans because they had a constitutional right to protest peacefully.

The next hearing is scheduled for 2 October 2012, the day on which the defence intends to present an oral submission to the court arguing that Phylis Omido and her co-defendants have no case to answer and should thus be acquitted without any further proceedings.

Front Line Defenders reiterates its call on the Kenyan authorities to immediately drop all charges against Phylis Omido, as it is believed that they have been brought against her solely as a result of her legitimate and peaceful community-mobilising initiative.

For further information, please see the Front Line Defenders urgent appeal, Judicial harassment of environmental rights defender Ms Phylis Omido dated 1 August 2012.

• The National Environment Management Authority