Hope for convicts who are victims of harsh criminal justice

A number of convicts have walked to freedom after successfully appealing against being imprisoned for crimes they did not commit.

The wheels of criminal justice in Kenya rotate very slowly, and it is not unusual to find such persons being acquitted after serving considerable time in the dungeons.

Take the case of Victor Mwai, who finally reunited with his family after eight years. This was after the appellate court found that he was the wrong person behind bars, a victim of wrong identification by the police.

He had been found guilty of robbery with violence by a magistrate’s court on May 5, 2006 and sentenced to suffer death. A two-judge bench of the High Court upheld his conviction on February 4, 2009.

DETERMINATION

However, his lone spirited determination paid off, when Court of Appeal Judges John Mwera, Gatembu Kairu and Jamila Mohammed agreed with the arguments advanced by his lawyer, John Swaka that there were inconsistencies in the case against him.

The judges also agreed with Mr Swaka’s argument that the magistrate’s court erred in refusing to allow Mr Mwai to call witnesses.

In the case, police officers on patrol heard shouts of “thief! thief!” and saw three young men running, with the crowd in hot pursuit. The officers also gave chase in the December 2003 robbery.

Unfortunately, the young men ran in different directions, but one of the suspects was arrested after police shot in the air.

At the police station, the suspect requested to use the toilet but jumped over the fence next to the toilet.

DISMISSED FROM SERVICE

The police officer who had escorted him paid for this escape by being dismissed from service; but he decided on his own to investigate and pursue the matter.

In April 2004, as he walked in Kariobangi, Nairobi, he received information that the suspect who had escaped was at a nearby shopping centre. He informed other officers, who accompanied him, and Mr Mwai was arrested and charged.

The appellate court, however, found the wrong person was arrested.

Other convicts have passed through the eye of a needle to freedom, after they found themselves among the beneficiaries of a presidential pardon.

Mr Mwai is among the many Kenyans who have been disappointed by the criminal justice system in the country.

A study by the Judiciary in 2014, Court Cases Delays: Impact Evaluation Diagnostic Study Report, showed that case delay is a collective problem that can only be eliminated through co-operative action by all justice-sector institutions.

CRIMINAL JUSTICE

A key finding in another report, The Criminal Justice System Audit Report, published in 2017 by the Judiciary through the National Council on the Administration of Justice, was that the criminal justice system is largely skewed against the poor.

The audit found more poor people are arrested, charged and sent to prison compared with the well-to-do.

However, there is a ray of hope for those who might have suffered the harsh side of the criminal justice system and are currently serving unknown prison terms.

On December 14, 2017, a full bench of the Supreme Court declared mandatory death sentences unconstitutional as they had restricted judges to only one sentence, that of death. The law had been in operation since the colonial era.

MITIGATING CIRCUMSTANCES

"Failing to allow a court discretion to take into consideration the convicts' mitigating circumstances, and the circumstances of the crime, but instead subjecting them to the same (mandatory) sentence thereby treating them as an undifferentiated mass, violates their right to dignity," they observed.

Other countries in Africa where the death penalty has been abolished are Uganda, Tanzania, Malawi and South Africa.

They also faulted mandatory death sentences because they had the effect of forcing the trial court to hand down a sentence predetermined by the legislature, which went against the doctrine of separation of powers.