Azimio MCA Absalom Odhiambo Freed Despite Uproar On Hate Speech Remarks
A Nairobi court had denied an application by the Office of the Director of Public Prosecution (ODPP) seeking to have him detained for seven more days
Marvin Chege 
Korogocho Member of County Assembly (MCA) Absalom Odhiambo alias Matakwey Mobimba was set free on Wednesday, February 1 despite the uproar generated by his recent remarks bordering on incitement.
A Nairobi court had denied an application by the Office of the Director of Public Prosecution (ODPP) seeking to have him detained for seven more days pending investigations into the alleged hate speech remarks.
Milimani Principal Magistrate Gilbert Shikwe found that the police and the prosecution were insensitive to the changes in the law while seeking orders to detain the MCA, adding that he was arrested and detained based on a non-existent law.
Korogocho MCA Absalom Odhiambo (centre left) with his lawyer Apollo Mboya (centre right) at the NCIC, Britam Towers offices on January 30, 2023. /TWITTER.MADOKA KIBET
"I have looked at the case presented in court. Looked at the High Court decision making section 96A of the penal code unconstitutional and I have noted that the decision has not been challenged by the prosecution.
"It is a nonchallenged fact that the applicant seeking orders to detain the suspect for seven days has no legal leg to stand and the only option is to dismiss," Shikwe stated.
Shikwe noted that the Inspector General of Police and the Directorate of Criminal Investigations should have known that the law on which they relied on seeking detention orders was struck off.
The said law, therefore, doesn't exist in the legal books having been declared unconstitutional by appeal Judges Jessit Lesiit, John Mativo and Luka Kimaru.
Odhiambo's lawyer Apollo Mboya revealed that the case was dropped based on Section 96A of the penal code which was declared unconstitutional in the 2015 incitement case that involved former Machakos Senator Johnson Muthama.
"Section 96A of the Penal Code was brought to the attention of the judge which was unconstitutional pursuant to a three-Judge bench ruling issued in 2015 against then-Senator Muthama," he disclosed.
Section 96(a) of the penal code states that the burden of proof lies upon any person who utters, prints or publishes any words or does any act calculated to bring death or physical injury to another person, class, or community.
Immediately after his release the MCA, while addressing the media outside the courts stated that he will pursue the Directorate of Criminal Investigations (DCI), Inspector General of Police (IG), Attorney General (AG) and DPP for illegal arrest and detention which has caused him embarrassment and disrepute.
The MCA had spent two nights in custody at Central Police Station over allegations of incitement to violence and disobedience of the law over the utterances he made during a meeting at Chungwa House in Capitol Hill on January 25, 2023, which caused an uproar on social media.
Odhiambo was picked up by DCI officers at the National Cohesion and Integration Commission (NCIC) offices in Upper Hill, Nairobi where he was summoned over remarks bordering on incitement.
The MCA at the time was criticizing the leadership of Kenya Kwanza and inciting supporters of Azimio to prepare for industrial action in the capital.
“Kwa siasa ya taifa tunataka tutoke twende ikulu tutoe huyo mwizi… Nataka tuingie town, tufunge biashara. Hakuna biashara itaendelea hii town ya Nairobi. Ndio William Ruto aheshimu Raila Odinga lazima tufunge biashara hii town,” he said.
Translated to; "In the politics of the nation, we want to head to State House to remove that thief. I want us to enter the town and close all businesses. There is no business that will go ahead in Nairobi town. So that William Ruto respects Raila Odinga, we must close all businesses in this town."
NCIC Chairperson Samuel Kobia, while responding to comments made by the Azimio la Umoja One Kenya Coalition at a Kamukunji rally, also issued a call to action for all elected leaders to show respect towards the Presidency, which serves as a representation of national unity.
NCIC Commissioner Rev. Dr Samuel Kobia. /FILE
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