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A magistrate court in Mombasa has sentenced five activists and tout to six-month probation after demanding government transparency in procuring Covid-19-related equipment.

The activists are Francis Auma (Muhuri), Lucas Fondo (Lenggo), Nato Michael (Haki Kenya), Felix Otieno, and Tirus Makumi (Agenda Kenya). The conductor is Kiti Nyale.

On August 25, 2020, the activists planned a protest to pressure the government to arrest and arraign individuals linked to mismanagement of Covid-19 funds.

A government probe uncovered evidence of Kenya Medical Supplies Authority (Kemsa) Covid-19 tenders being allegedly given to politically connected individuals and businesses.

Parliament investigations put the tenders to a tune of Sh7.8 billion.

And the Ethics and Anti-Corruption Commission (EACC) recommended the prosecution of directors from Accenture Kenya, Gadlab Supplies, Meraky Healthcare, Steplabs Technical Services, Wallabis Ventures, Shop n Buy and Kilig Ltd.

Police on August 25, 2020, separately arrested the activists shortly before the protest could start while they walked from different directions to Makadara Ground, the point of convergence.

Visuals showed police firing teargas at a bus stop, Posta, which is a few meters from Makadara Ground. Dozens of commuters were caught up in the melee as they scampered for safety. Police arrested Nyale, a matatu conductor. He was waiting for passengers to board.

The six faced three counts: prohibited gathering, failing to keep their social distance, and wearing a facemask. They deny.

The state called one witness, a cop, “who admittedly was not at the scene of the alleged offence”, Coast Civil Society Network for Human Rights said in a statement. He had no first-hand contact with the accused persons, the group added.

Advocates involved in the case said the court shifted the responsibility of proof beyond a reasonable doubt to the accused.

“The is contrary to the universally established principle of the role of the prosecution,” they said.

Kenyan activists facing jail term for fighting corruption

Sentencing

On February 4, 2022, magistrate Rita Amwayi said the six were guilty of “prohibited gathering” and “failing to keep their physical distance”. Amwayi said there was no evidence to show the six were not wearing facemasks during the arrest.

On February 21, 2022, Amwayi sentenced the six.

“I have sentenced each to serve six-month probation for each count. The sentences will run concurrently. They have 14 days right of appeal,” Amwayi said.

Activists outside Mombasa Law Courts after the sentencing. Photo: Ernest Cornel.

MUHURI Executive Director, Marie Ramtu, said Kenya ratified international treaties like the African Charter that guarantee the right to protest.

“The judiciary needs to abide by those treaties when carrying out its work,” she said shortly after the sentencing.

Salma Hemed of Haki Africa said the constitution governs Kenya and “protect us when we protest injustice”.

The sentencing is a clear case of judicial harassment towards activists and must stop, Gloria Madegwa of Defenders Coalition said.

In the context of the shrinking civic space in Kenya, Article 19 Eastern Africa said in a statement, the judgment sets a dangerous precedent in the free expression landscape.

“It further delegitimizes the right to protest,” the organization said.

Coast Civil Society Network for Human Rights added: “This judgement goes to annuls of history as a drawback. We shall appeal and win.”

Read the judgement.