LEGAL OPINION FOR MR. ELIAS MWENDA IN REGARD TO HIS ARREST AND
OTHER RELATED LEGAL ISSUES.
My name is Omondi Elseba Akinyi counsel for Mr. Elias Mwenda, a 22 year old university
student activist, who was arrested with the claims that his call for a nationwide protest
amounted to incitement that could threaten public order. However his arrest was not only
procedurally flawed but was also a violation of his constitutional rights.
I hereby write this legal opinion seeking to address the arrest and detention of Mr. Elias
Mwenda, evaluating the legality of his arrest, sezuire of his property and the broader
constitutional implications under the Constitution of Kenya 2010.
FACTS OF THE CASE
Mr. Elias Mwenda gave a speech at a student forum criticizing corruption in the Ministry of
Education and calling for a nationwide peaceful protest. Two days later, he was arrested by
plain clothes officers who not only failed to inform him of his charges but also arrested him
without a warrant. In addition, his phone was confiscated and his laptop seized without
presenting a court order. The police justified their actions under the doctrine of urgency,
claiming that his speech amounted to incitement that could threaten public order.
These facts however raise certain issues and they include:
1. Whether Mr. Mwenda's public call for a national peaceful protest was a lawful exercise of
his consitutional rights enshrined under Article 33 and 37 of the constitution of Kenya.
2.Whether the rapid online dissemination of Mr. Mwenda's speech was a protected exercise
of the freedom of expression and media under Articles 33 and 34 of the constitution.
3. Whether the police officers act of arresting Mr. Mwenda without informing of his charges
was lawful and compiled with Article 49 of the consitution of Kenya.
4. Whether the arrest of Mr. Mwenda without a search warrant compiled with constitutional
and statutory requirements.
5. Whether the seizure of Mr. Mwenda's phone and laptop without a warrant violated his
rightb to privacy under Article 31 of the constitution.
My client may hereby seek legal redress for violation of his constitutional rights in regard to
the following issues:
1. FREEDOM OF EXPRESSION
Under Article 33 of the Kenyan constitution,1 Every person has the right to freedom of
expression, which includes the freedom to seek, receive or impart information or ideas.1
1
Constitution of Kenya 2010, art 33.
2
Ibid, art 33 (2).
, The limitation of this Article is provided for in Article 33 (2) of the Kenyan Constitution2
which states that the right to freedom of expression does not extend to propaganda of war,
incitement to violence, hate speech or advocacy of hatred.
In addition, Article 33 (3) of the Kenyan Constitution3 states that the exercise of this right,
shall respect the rights and reputation of others.
The following constitutional articles thereby show how Mr Mwenda's act of criticizing
alleged corruption within the Ministry of Education was not a violation of the Kenyan laws
but a mere highlight of suspected misappropriation of funds which is a freedom provided for
by the laws. Furthermore, Mr. Elias Mwenda's speech had no mention of specific official's
names thus the respect of rights and reputation of others was upheld.
Under Article 37 of the Kenyan Constitution,4 Every person has the right, peaceably and
unarmed to assemble, to demonstrate, to picket and to present petitions to public authorities.
However, Article 24 (1) of the Kenyan Constitution5 states that a right or fundamental
freedom in the Bill of Rights shall not be limited except by law, and then only to the extent
that the limitation is reasonable and justifiable in an open and democratic society based on
human dignity, equality and freedom, taking into account all relevant factors.
It is evident that my client Mr. Mwenda made his speech at a peacefully organised forum
thereby satisfying all the necessary elements in Article 37 of the Kenyan Constitution.6
In regard to this issue, the state may argue that they were trying to prevent a "potential
security threat". However, the state's claim may not succeed as there was no indication that
his speech posed a real or imminent threat. Therefore, his speech is constitutionally protected,
and the police's claim of incitement is legally untenable.
The state may also argue that Mr. Mwenda had not notified the Officer Commanding Police
Station of the upcoming national protests as stated in Section 5 of the Public Order Act (cap
56)7 but Mr. Mwenda can justify his actions by stating the Okiya Omtatah Okoiti V Inspector
General & 2 others (2014) eKLR8 case which addresses the issue of whether failure to notify
the police of a public gathering as required by Police Officers Act constitues a crime and the
court acknowledged that while the act mandates prior notification, the absence of such notice
does not necessarily criminalize the act of assembly itself.
2. FREEDOM OF MEDIA
3
Ibid, art 33 (3).
4
Ibid, art 37.
5
Ibid, art 24 (1).
6
Ibid, art 37.
7
Public Order Act (cap 56), s 5
8
Okiya Omtatah Okoiti V Inspector General & 2 others (2014) eKLR.
OTHER RELATED LEGAL ISSUES.
My name is Omondi Elseba Akinyi counsel for Mr. Elias Mwenda, a 22 year old university
student activist, who was arrested with the claims that his call for a nationwide protest
amounted to incitement that could threaten public order. However his arrest was not only
procedurally flawed but was also a violation of his constitutional rights.
I hereby write this legal opinion seeking to address the arrest and detention of Mr. Elias
Mwenda, evaluating the legality of his arrest, sezuire of his property and the broader
constitutional implications under the Constitution of Kenya 2010.
FACTS OF THE CASE
Mr. Elias Mwenda gave a speech at a student forum criticizing corruption in the Ministry of
Education and calling for a nationwide peaceful protest. Two days later, he was arrested by
plain clothes officers who not only failed to inform him of his charges but also arrested him
without a warrant. In addition, his phone was confiscated and his laptop seized without
presenting a court order. The police justified their actions under the doctrine of urgency,
claiming that his speech amounted to incitement that could threaten public order.
These facts however raise certain issues and they include:
1. Whether Mr. Mwenda's public call for a national peaceful protest was a lawful exercise of
his consitutional rights enshrined under Article 33 and 37 of the constitution of Kenya.
2.Whether the rapid online dissemination of Mr. Mwenda's speech was a protected exercise
of the freedom of expression and media under Articles 33 and 34 of the constitution.
3. Whether the police officers act of arresting Mr. Mwenda without informing of his charges
was lawful and compiled with Article 49 of the consitution of Kenya.
4. Whether the arrest of Mr. Mwenda without a search warrant compiled with constitutional
and statutory requirements.
5. Whether the seizure of Mr. Mwenda's phone and laptop without a warrant violated his
rightb to privacy under Article 31 of the constitution.
My client may hereby seek legal redress for violation of his constitutional rights in regard to
the following issues:
1. FREEDOM OF EXPRESSION
Under Article 33 of the Kenyan constitution,1 Every person has the right to freedom of
expression, which includes the freedom to seek, receive or impart information or ideas.1
1
Constitution of Kenya 2010, art 33.
2
Ibid, art 33 (2).
, The limitation of this Article is provided for in Article 33 (2) of the Kenyan Constitution2
which states that the right to freedom of expression does not extend to propaganda of war,
incitement to violence, hate speech or advocacy of hatred.
In addition, Article 33 (3) of the Kenyan Constitution3 states that the exercise of this right,
shall respect the rights and reputation of others.
The following constitutional articles thereby show how Mr Mwenda's act of criticizing
alleged corruption within the Ministry of Education was not a violation of the Kenyan laws
but a mere highlight of suspected misappropriation of funds which is a freedom provided for
by the laws. Furthermore, Mr. Elias Mwenda's speech had no mention of specific official's
names thus the respect of rights and reputation of others was upheld.
Under Article 37 of the Kenyan Constitution,4 Every person has the right, peaceably and
unarmed to assemble, to demonstrate, to picket and to present petitions to public authorities.
However, Article 24 (1) of the Kenyan Constitution5 states that a right or fundamental
freedom in the Bill of Rights shall not be limited except by law, and then only to the extent
that the limitation is reasonable and justifiable in an open and democratic society based on
human dignity, equality and freedom, taking into account all relevant factors.
It is evident that my client Mr. Mwenda made his speech at a peacefully organised forum
thereby satisfying all the necessary elements in Article 37 of the Kenyan Constitution.6
In regard to this issue, the state may argue that they were trying to prevent a "potential
security threat". However, the state's claim may not succeed as there was no indication that
his speech posed a real or imminent threat. Therefore, his speech is constitutionally protected,
and the police's claim of incitement is legally untenable.
The state may also argue that Mr. Mwenda had not notified the Officer Commanding Police
Station of the upcoming national protests as stated in Section 5 of the Public Order Act (cap
56)7 but Mr. Mwenda can justify his actions by stating the Okiya Omtatah Okoiti V Inspector
General & 2 others (2014) eKLR8 case which addresses the issue of whether failure to notify
the police of a public gathering as required by Police Officers Act constitues a crime and the
court acknowledged that while the act mandates prior notification, the absence of such notice
does not necessarily criminalize the act of assembly itself.
2. FREEDOM OF MEDIA
3
Ibid, art 33 (3).
4
Ibid, art 37.
5
Ibid, art 24 (1).
6
Ibid, art 37.
7
Public Order Act (cap 56), s 5
8
Okiya Omtatah Okoiti V Inspector General & 2 others (2014) eKLR.
