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Kenya: Update - Prosecution and defence present submissions in ongoing trial of environmental rights defender Ms Phylis Omido
On 12 October 2012, environmental rights defender Ms Phylis Omido, appeared again before a magistrate at the Mombasa Law Courts where the prosecution offered its response to the defence team's submission of 2 October 2012.
In the submission, the defence team urged the court to find that the defender and her co-accused have no case to answer and proceed to acquit them.
During the hearing on 12 October, the prosecution argued that the police's actions to arrest Phylis Omido and her co-defendants had been warranted by its suspicions that there was a serious risk of the demonstrators causing damage to people or property. Noting that the prosecutor offered no more evidence for that assertion than has already been heard by the court, the defence team rebutted asking that the court makes a decision in favour of the defendants. As in its submission during the previous hearing on 2 October 2012, the defence submitted that the latter have no case to answer before the court, and should therefore be acquitted. The judge declined to make any decision and instead adjourned the hearings until 7 November when she says she will decide on the way forward.
The trial against Phylis Omido is based on charges of “incitement to violence” and “unlawful assembly” as a result of a demonstration organised by the human rights defender in April 2012 at a battery recycling plant. The plant is suspected to be a source of lead poisoning affecting the village of Owino Ohuru in which it is located. Phylis Omido and 16 others were arrested after police arrived at the scene of the demonstration. The human rights defender's defence team pointed out that constitutional provisions on the freedom of peaceful assembly and the right to a clean environment meant the group “would have been well within their constitutional rights to carry out such a demonstration”, unless there was reason to believe this would infringe others' constitutional rights, no evidence of which has been presented. The defence also put forward that the police's claim that no license was obtained for the demonstration was entirely irrelevant, as such a license is not in fact required under any law in Kenya.
As the defence has repeatedly argued, 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 has 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.”
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 mobilisation initiative.