KNCHR wanted to join the matter because the 65 people were victims who had been rescued from the Shakahola forest, but later the state applied to have them charged after they became uncooperative with the police.
The ‘victims’ status was withdrawn, and they are now suspects being held in various prison facilities at the Coast. The state has already applied for continued detention of the 65 for yet another 180 days.
On October 18, KNCHR applied to be enjoined in the case, arguing before the court that without their participation in this matter, there is a possibility that the fundamental rights of the respondent may be under violation.
KNCHR presented 20 grounds upon which their application was premised.
The application was also supported by the affidavit of Annemarie Okutoyi, the Director of the Research Advocacy and Outreach Directorate at KNCHR, sworn on October 18, 2023.
In the application, KNCHR said they have the core constitutional mandate of ensuring the protection and promotion of human rights in Kenya.
KNCHR said they can do that on their initiative or based on complaints, monitor, investigate and report on the observance of human rights in all spheres of life in Kenya.
They said they had been working with other state agencies in monitoring and ensuring that operations conducted or undertaken by the agencies about the Shakahola massacre, were in line with human rights standards best practices and principles.
According to KNCHR, the 65 respondents were previously treated as victims and held at a rescue centre, according to inter cilia an advisory made to the court by the commission.
However, they were subsequently recharacterised as suspects on the basis that they may have committed criminal offences under various statutes, following which they were placed in detention.
On October 9, the Director of Public Prosecutions sought to have the pre-trial detention for all the respondents increased by a further 180 days pending the conclusion of active investigations.
KNCHR said they were concerned about the request for the continued detention of the 65 respondents without charge, and its ramifications on their fundamental rights and freedoms.
Therefore, the commission applied to participate in the instant proceedings and respond to the state's application for an extension of the detention period.
“The commission seeks to advance the interests of constitutionalism, the constitution and the rule of law, and can only do so if allowed to participate in the instant proceedings as an interested party,” said the KNCHR in the court documents.
However, the state opposed the application, arguing that KNCHR wanted to be enjoined into the instant proceedings so that it would oppose the state application that seeks the extension of the custodial orders pending the conclusion of the investigations.
The DPP also argued that the KNCHR did not, in the circumstances, intend to make any independent particular position, but rather take the position of the respondents, who are represented by counsel, to oppose the state’s application.
The state opined that the commission, on the premises, offers nothing other than what the parties can already present before the court and, that the inclusion of the commission would in the obtaining situation unnecessarily cloud the issues to be determined in the application for the extension of custodial orders.
In his 30-page ruling delivered on December 1, Shanzu Senior Principal Magistrate Joe Omido ruled that the KNCHR did not state the reason or the basis for the concern that it has over the fundamental rights and freedom of the respondents.
“For instance, it has not stated that the fundamental rights of the respondents have been violated during the previous proceedings according to which the respondents were remanded in custody,” Omido said.
The court also established that the respondents are being represented by a counsel under the National Legal Aid Services and any concerns that may arise during the hearing of the state’s application for the extension of custodial orders can be addressed by the counsel on record.
“I would agree with the state that in the wake of the foregoing, there is nothing that the commission will bring forth that the advocate instructed by NLAS to represent the respondents cannot,” ruled Omido.
He said the application was not meritorious.
“Consequently, the results that I reach is that the application by the commission for the admission to the status of interested party dated October 18, 2023, must fail as the threshold for such admission has not been met by the commission. I proceed to dismiss it,” ruled Omido.
