Minister loses bid to halt hate speech charges

Former Cabinet Minister Ali Chirau Mwakwere. PHOTO / FILE

What you need to know:

  • He still has the option of extending the battle to the Court of Appeal, but the courts are on vacation until September 15.
  • The minister has twice failed to honour court summons to answer charges of hate speech.
  • Mr Mwakwere’s troubles began after NCIC complained that the minister had committed hate speech during campaigns for the by election in July 2010 of the Matuga Constituency in which he is the Member of Parliament.
  • Mwakwere is alleged to have made a speech that borders on racial hatred during one of the campaign rallies on July 12, 2010.

Trade minister Chirau Ali Mwakwere can now be tried for hate speech after a court threw out his application to stop the prosecution.

The latest chapter in the year-long legal battle by the minister to block trial came yesterday when High Court Judge David Majanja dismissed his second application.

The ruling means that Mr Mwakwere may have to vacate his Cabinet position if the case goes to trial.

He is required to appear before the magistrate’s court on September 18 to answer charges of hate speech.

He still has the option of extending the battle to the Court of Appeal, but the courts are on vacation until September 15.

The matter will also be complicated because the magistrate has informed his lawyers that Mr Mwakwere must honour the court summons even if he intends to settle the matter out of court with National Cohesion and Integration Commission (NCIC).

Last Friday his lawyer, Mr Elijah Mwangi, had informed trial magistrate Lucy Nyambura that Mr Mwakwere and the NCIC were working on a conciliation process, a way of resolving the dispute out of court, but the magistrate said that he has to honour the summons first and appear in court.

The minister has twice failed to honour court summons to answer charges of hate speech.

On Monday, Judge Majanja said he was not persuaded that Mr Mwakwere’s case was one where the court should stop the criminal trial at the magistrate’s court so that he can pursue his appeal.

The minister’s lawyer pleaded with the judge to suspend his decision, but Mr Justice Majanja declined. He said that the minister was free to contest his ruling at the Court of Appeal.

Mr Mwakwere filed the application last week asking the judge to suspend his criminal trial so that he could appeal against a July 26 decision by Judge Majanja dismissing his constitutional petition.

The judge said he had to balance the right of Mr Mwakwere to pursue his undoubted right of appeal and the public interest in ensuring that the legal process takes its course.

“The charging and prosecution of the petitioner is a logical consequence of the application of the law and the exercise of prosecutorial discretion by the Director of Public Prosecution is constitutionally underpinned and cannot be impugned by a conservatory order,” said Justice Majanja.

The judge added that there has been no challenge to the authority of the Director of Public Prosecutions to take steps to prosecute the petitioner.

On the argument by the minister that his appeal has high chances of success, Justice Majanja said the issue was beyond his consideration and is a matter within the province of the appellate court.

Furthermore, the Court of Appeal has expressed the sentiment that it is against public policy to delay criminal trial and prosecutions, because there is no guarantee that a person may be convicted and that in any case, the accused still has a right of appeal.

The judge said that Mr Mwakwere’s fears would be taken care of because a person arrested and charged is entitled to all constitutional protections under the law.

The minister had in the petition accused NCIC and the DPP of infringing on his constitutional rights to freedom of expression by initiating investigations into hate speech allegations.

Mr Mwakwere’s troubles began after NCIC complained that the minister had committed hate speech during campaigns for the by election in July 2010 of the Matuga Constituency in which he is the Member of Parliament.

Mwakwere is alleged to have made a speech that borders on racial hatred during one of the campaign rallies on July 12, 2010.