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Minors arrested in Masjid Musa mosque raid released

06 February 2014, 16:45 Ken Wekesa

Mombasa - Mombasa high court on Thursday released unconditionally all the children under the age of 12 who were arrested in Masjid Musa Mosque raid Sunday.

In his ruling, Judge Martin Muya ordered the release of two children who are said to be under the age of 12 years.

“Under section 14 of the penal code, children under the age of 12 years are not responsible for any act of crime unless they are found in the act and proven to have committed the offence. Children under the age of 12 should be unconditionally discharged while those over 12 years should be remanded at a juvenile cells at potreiz,” said Muya.

Lawyer Mohammed Balala had brought the matter to court to oppose the orders made by the magistrate court in Shanzu to remand all the 129 suspects arrested by police.

Balala faulted the Shanzu court saying it erred in remanding all the children under the age of 18 at a maximum security facility, Shimo la Tewa prison, without any valid evidence that they were members of the Al Shaabab.

“The children arrested are school-going children who had gone to the mosque for prayers. The prosecution has not specified the nature of the inquiries the police made during the arrest,” said Balala.

“It’s a mandatory that a court will not hear any application if the respondents are not served with what is being applied for, none of the accused was allowed to object the applications made in court nor were they served with the copies of the application,” said Balala

He added that the only objection recorded in the court was of lawyer Mohammed Ali who was representing one of the accused persons.

Balala said the police stated in the affidavit that the accused persons were dangerous and a threat to the state yet they did not show any proof to support the claims.

“The police did not arrest the accused persons with anything like a uniform or weapon that suggested they were dangerous and a threat to state,” said Balala.

He also faulted the manner in which the accused persons were taken to court and how their parents were treated.

“All the 129 were brought to court in an intimidating manner which was traumatizing and damaging. Children were kept in a cage and their parents kept utside court. The only people present in court were the accused persons, two lawyers, the prosecution and the cameramen,” said Balala

However, the state Prosecutor Sarah Ogweno objected the application made by Balala.

“In accordance to section 59(1), a suspect has to be arraigned in court within 24 hours and that is what the prosecution complied with to certify that provision under section 32,” said Ogweno

She defended the detention saying the nature of the application made it clear that they wanted interview and to profile the accused person and admitted that the profiling and interview could not be conducted the same day.

Ogweno also admitted that due to the high number of those arrested, the prosecution had a hard time sorting out children form the group.

She also dismissed Balala's application as ‘premature’ since the matter was up for mentioning at shanzu law courts on Friday.

Balala applied to be served with all certified copies of the ruling with a view to appeal the ruling made by Judge Martine Muya.

The case will be mentioned on February 13, 2014 for further direction.

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