DPP slammed by legal experts for 'weaponising' terrorism charges against peaceful protesters

Legal experts have slammed the Director of Public Prosecutions (DPP) over what they term as a deliberate misuse of terrorism charges against peaceful demonstrators, warning that the move undermines Kenya’s democratic space.

The Law Society of Kenya (LSK), senior lawyers, and former Chief Justices have accused Renson Ingonga of weaponising the law to silence dissent, saying the charges are illegal and aimed at instilling fear.

“Since last year, there has been a spike in trumped-up charges, children being kept for more than 24 hours, others placed with adults, and charges that do not meet the threshold but are framed to ensure protesters remain in custody,” LSK President Faith Odhiambo said, announcing plans to challenge them in the High Court.

She warned that the greater harm is keeping arrested persons behind bars through unreasonable bail and bond terms, even though the cases will likely collapse.

“We are giving the Judiciary and the judicial officers the benefit of doubt as they examine the charges. Some courts have given reasonable terms, some on Sh1,000, others Sh5,000, but, unfortunately, some courts are being forum-shopped to impose very high bail and bond terms, based on charges designed to keep bail terms high. Courts should avoid being weaponised against the people of Kenya,” she said.

Odhiambo reminded that the Judiciary is the last resort for citizens seeking justice.

Leaders, including Gatanga MP and lawyer Edward Muriu, criticised the use of terrorism charges against protesters, comparing it to “killing a fly with a sledgehammer.”

“We have almost 200 Gen-Zs in court facing all manner of charges, including terrorism. When people exercising their rights under Article 37 of the Constitution are labelled terrorists, you might succeed in suppressing them, but the message you send to the world is that Kenya is a country of terrorism and Kenyans are terrorists. Investors stay away, tourists don’t come because your security is not guaranteed,” Muriu warned.

Kenya’s Prevention of Terrorism Act (POTA), amended in 2014, gives the State powers to investigate and prosecute terrorism. The law aims to combat terrorism financing and violent extremism through the National Counter Terrorism Centre (NCTC), a multi-agency body responsible for deterring, detecting, and disrupting terrorist acts.

Kenya is also part of the Eastern and Southern Africa anti-money laundering group and has a Financial Reporting Centre (FRC) to help counter terrorism financing.

But LSK Deputy President Mwaura Kabata insists POTA is being misapplied. While acknowledging that terrorism is recognised internationally, Kabata argued that it remains a specialised crime under Kenyan law.

“Offences such as insurgency, protests, or violent upheavals are captured in the Penal Code. For example, if one burns a police station, they should be charged with destruction of government property under Section 339 of the Penal Code or arson under Section 332, which is a felony,” Kabata said.

He accused the State of bypassing the Penal Code in favour of POTA to justify exaggerated charges.

“When you ignore the Penal Code and move to POTA, you are trying to fit offences into a law that was not meant for such situations. POTA was never designed for Kenyan protesters. It targets violent groups like Al-Shabaab, ISIS, and Al-Qaeda,” he said.

Kabata argued that the DPP’s use of POTA against protesters is a clear abuse of power.

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“When the DPP approves charges under POTA for protesters, what he is doing is generating fear by abusing his office. The preamble of POTA and parliamentary discussions show it was never meant for domestic protests,” he added.

He pointed out that Section 2 of POTA exempts demonstrations and protests, acknowledging that destruction and looting can occur during demonstrations, even in advanced democracies like the United States.

“The Constitution guarantees the right to demonstrate peacefully. The DPP’s use of POTA is unconstitutional because it overrides that right with proceedings that contradict the law’s original purpose,” Kabata said, adding that LSK will be moving to court to challenge Ingonga’s decision.

“To us, it is completely unethical. It is devoid of moral value. It is not just abuse of court process; it is extreme abuse of office,” he said.

Former Chief Justice David Maraga accused the government of using the justice system as a political weapon.

“Ruto’s government is weaponising the criminal justice system to terrorise arrested youth and their families. The reckless use of the Prevention of Terrorism Act and ATPU is a violation of—or a significant threat to—Kenyans’ freedom of assembly and expression, the right not to be arbitrarily detained or denied bail, and the right to freedom and security of the person,” Maraga said.

His sentiments were echoed by senior lawyer Paul Muite, who described the charges as politically driven.

“Imposing these unreasonably tough bail conditions on Gen-Zs charged with politically motivated terrorism offences violates the constitutional right to bail under Article 49(1)(h), which requires reasonable bail conditions. Magistrates should avoid being seen as an extension of the executive,” Maraga added.

Court charge sheets reveal that while some suspects face alternative charges under the Penal Code, others have been directly charged under POTA. Notably, former Deputy President Rigathi Gachagua’s allies Peter Kinyanjui and Wanjiku Thiga have been charged with committing acts of terrorism.

According to the charge sheets, the two are accused of causing serious damage to government offices, including Kikuyu Probation Offices, Kikuyu Law Courts, Kikuyu Sub-County Offices, Kikuyu Chief’s Office, Registrar of Persons’ Offices, Sub-County Education Office, Accountant’s Office, Registrar of Lands Offices, Dagoretti Police Post and the Kikuyu Deputy County Commissioner’s Office.