Why HON.BABU OWINO May Not be Convicted After All.
I would advice Babu enemies and the police to be a bit cautious and not to be overzealous about arresting and charging Babu. As a lawyer, I am convinced that it will be almost impossible to obtain a conviction against Babu based on the video clip circulating on social media.
Section 106B of the Evidence Act (CAP 80), Laws of Kenya prescribes the procedure and the conditions that must be met before information contained in an electronic record can be admitted as evidence in court proceedings.
These conditions are in the nature of statements made in evidence for the purpose of satisfying the court as to the integrity and reliability of the electronic record being produced in evidence. They include satisfying the court that:
1. The electronic record was produced, fed into or derived from the computer in the ordinary course of business by a person having lawful control over the computer;
2. The computer was operating properly or if there was any way in which it was not operating properly, then such malfunction was not of such a nature as to affect the electronic record or the accuracy of its content.
This section of the law goes further to prescribe that these conditions may be satisfied by the production of a ‘certificate’ signed by a ‘a person occupying a responsible position in relation to the operation of the relevant device or the manager of the relevant activities’ identifying the electronic record and the manner in which it was produced and/or giving the particulars of any device involved in the production for the purpose of showing that the record was produced by a computer.
Babu and the police should take legal notice of the ‘ratio decidendi’ in Republic v Wilfred Machage & Others, where an archival media footage supposedly capturing political leaders including Machage and Kapondi uttering allegedly hateful and inciting words was produced as evidence in Court. The accused persons were ultimately acquitted because the video evidence was declared inadmissible and the remaining evidence declared as not sufficient to sustain conviction.
My view, understanding the context within which the Babu video was captured, is that the video cannot meet the threshold of Section 106B to be admitted as evidence in court. In the absence of any other evidence, which I doubt can be forthcoming in the circumstances, the police will not muster sufficient evidence to sustain conviction.
I therefore advice Babu and his supporters to swim in the splendor of free publicity he is definitely getting from his enemies and police’s overzelousness.