The DPP has asked a Mombasa magistrate to withdraw himself from a case involving four girls suspected to be members of the dreaded al Shabaab terror group.
The office of the DPP in the county asked principal magistrate Simon Rotich to do so after he declined to let the prosecution use video evidence when presenting arguments.
The application was made on Tuesday by principal prosecutor Eugene Wangila.
The case involves Maryam
Said, Khadija Abdulkadir from Malindi, Ummul Khayr from Tanzania and Halima Adan, who
were arrested on March 27, 2015 at El-Wak, Mandera.
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They were charged with arranging terror meetings, conspiring with terrorists and being in possession of terrorism materials.
They face another charge of trying
to cross the border into Somalia to join the terror group.
Wangila said the videos contain radical teachings and were to be used as evidence in the case.
He said the magistrate showed bias, and that his refusal to
watch them meant he had a preset mindset on the case.
“The magistrate openly declined to have the CDs containing the extremist teachings produced in court and said that even he had such materials on his phone,” Wangila argued.
He said the magistrate should have allowed the videos as court exhibits and evidence despite his personal opinion.
Rotich said on Wednesday that he was ready to recuse himself from the case but asked the prosecution to show why he has to do so in writing.
“I have been told that I am handling the matter very fast and that they are not comfortable with that,” he said.
The magistrate insisted that he had no interest in the case and said he should not be threatened to withdraw himself.
He said the main reason he was presiding over the matter was to administer justice for the accused.
Rotich noted that
although he was not ready to grant the accused bond due to the nature of the case, their rights were being violated.
Defence lawyer Hamisi Mwadzogo said they had no problem with Rotich handling the matter and were ready to proceed with the hearing.
But Mwadzogo said reasons should be given for the magistrate to recuse himself. He said the prosecution's denial of a magistrate is a serious matter that breaches the constitution.
“We cannot go to another court and say the previous court removed itself without reason. There has to be an application before we proceed to the chief magistrate to be allocated another magistrate,” he said.
The prosecution is set to file its application on May 13. The defence is expected to reply before the magistrate decides on the matter on the same date.