TURKANA South MP Josephat Koli Nanok and his Turkana Central counterpart David Ekwee Ethuro yesterday appeared refused to plead to a charge of incitement to violence claiming parliamentary immunity.
Nanok and Ethuro say the words they were accused of uttering were made in Parliament buildings which gives MPs privileges of immunity. They asked chief magistrate Waweru Kiarie to refer the matter to the High Court for constitutional interpretation.
Nanok said through his lawyer Jotham Aruwa, the Parliamentary Privileges and Immunity Act "takes away the criminal quality" of the charge he and his co-accused are facing.
He asked the court to "respect the separation of powers" as it was improper to charge them for an offence that took place at the precincts of Parliament.
Last Thursday, the two MPs told a press conference at Parliament Buildings those who ambushed and killed 42 policemen in Suguta valley, within Baragoi area in Samburu County were doing so to defend themselves from a 'state sponsored attack. Also present during the press conference was Labour minister John Munyes. The three read mischief in the police operation.
The prosecution alleges that the words they uttered implied that it was desirable to bring death or physical injuries to police officers in Baragoi.
Ethuro's lawyer Katwa Kigen, challenged the validity of the charge and wondered whether the two accused had "uttered the words in chorus" since the prosecution alleges that they uttered the offending words, 'jointly'.
He said the charge did not disclose an offence and urged the court reject it or refer matter to the High Court. He said that the charge sheet was "terribly wrong" and the court process should not be abused.
Another lawyer Tom Kajwang said the case was unconstitutional and was a breach of the MPs fundamental rights and freedoms. He said there was nothing stopping the magistrate from referring the matter to the High Court.
Prosecutor Onesmus Towett said the two MPs were rightly in court and asked that the court only listen to their application after pleading to the charge. The MPs can still go the High Court and stop the trial if they wished. "But as for now, there is nothing stopping the court from proceeding with the case," he said
Kiarie released the two MPs on cash bail of Sh50,000 each and will tomorrow decide whether to refer the matter to the High Court or have the MPs plead to the charge.
Nanok has been in police custody at the Kileleshwa Police station for the last two days while Ethuro, who was on Saturday questioned by the CID, was released on a police bond and ordered to appear in court yesterday.
The CID had last week summoned the two MPs, together with Munyes. Nanok ignored summons by the police prompting his arrest by officers from the Flying Squad last Friday shortly after appearing on a television talk show. He claimed the police locked him up after he refused to sign a statement which he had not authored.