Jayne Kihara, MP for Naivasha, has declined to honour a summons issued by the Directorate of Criminal Investigations (DCI), arguing that the legal basis for the summons is unconstitutional.
Kihara, through her lawyer Ndegwa Njiru, responded to the DCI in a letter dated July 14, arguing that Section 132 of the Penal Code, which was cited in the case, was nullified by the High Court back in 2017.
The summons, which was issued on July 11, had directed the legislator to appear at DCI headquarters on Monday morning for questioning over alleged remarks that may have undermined the authority of a public officer. The DCI claimed she could possess information useful to an ongoing investigation.
“I have reason to believe that you, Jayne Njeri Wanjiku Kihara, MP Naivasha Constituency, are connected to the offence or have information that can assist me in my investigations,” the DCI wrote in the letter.But Kihara’s legal team dismissed the summons, saying the cited section of the Penal Code was ruled unconstitutional in the 2017 case of Robert Alai vs Attorney General, and therefore cannot be used as a legal basis for questioning.
"While our client may hold a different opinion from yours, she is, regrettably, unable to assist in your investigations because the section under which she has been summoned was declared unconstitutional,” Njiru wrote in the response.High Court Judge E.C. Mwita, in the landmark ruling, declared Section 132 “unconstitutional and invalid,” effectively scrapping it from the statute books. The section had previously been used to prosecute individuals for remarks deemed to undermine public officers.
Kihara’s lawyers argue that appearing for questioning under a law that no longer exists would go against her duty to uphold the Constitution.
The DCI had warned that failure to comply would amount to an offence. It remains to be seen how investigators will respond to the MP’s refusal to appear.