Tired of serving for unspecified periods in prison, nine prisoners have petitioned the High Court to declare the law used to imprison them inhuman and unconstitutional, and to free them.
They want their detention “at the President’s pleasure” declared unlawful.
Mr Peter Kimaro Mumbi, who has been in prison for over 18 years, Justin Muna Karanja (13 years), Martin Kimani Ndung’u (14 years), Boniface Mwaura Njoroge (eight years), Ali Hassan Wako (over six years), Kelvin Munyua Ndung’u (over 14 years), Simon Gikundi (over 14 years), Daniel Omusala (over eight years), and Peter Gathagua Migwi (over 16 years), want their detention "at the President's pleasure" declared unlawful.
To increase their chances of succeeding, they have sought the services of Mr Aloise Onyango Odhiambo, a trained paralegal and inmate at Kamiti Maximum Security Prison
The nine, who come from humble backgrounds, are optimistic that Mr Odhiambo, who helped six inmates detained under the same law secure their freedom last year, will do the same for them.
Despite stiff opposition, Mr Odhiambo wrestled the prosecution lawyer to the ground, legally speaking, and persuaded the High Court to uphold his argument, leading to the freeing of the six unconditionally.
On Monday this week, the High Court directed the Attorney-General and the Director of Public Prosecutions to file their responses to the nine's application. The hearing has been set for April next year.
“It is evident from the time the petitioners have spent in prison that the President has not, and will not, find pleasure to look into their cause and, therefore, this calls for this honourable court’s intervention,” Mr Odhiambo said in court papers.
Detaining people “at the President’s pleasure” has long been a contentious issue in legal circles, with different judges making different decisions.
People guilty of offences they committed as minors and those with mental illnesses are not given definite prison terms. They are detained in prison and await to be released “at the pleasure of the President.”
This is provided for in the Criminal Procedure Code (CPC), which lays down the procedures for handling criminal cases, and the Penal Code (PC), which defines the sentence.
However, rulings declaring sections of the CPC and PC allowing for detention at the pleasure of the President unlawful have elicited mixed feelings.
In acquitting people detained at the President’s pleasure who had served considerable time behind bars, High Court judges have reasoned that people with mental illnesses should be in hospital, not jail, and that allowing the President to determine their sentences goes against the principle of separation of powers.
Besides, the law protects children against prolonged imprisonment, so they cannot be jailed for undetermined periods for offences they committed as children.
Lawyer Harun Ndubi says the country has a lazy jurisprudence system, where only the petitioner in a particular case benefits from the orders in that case. “Ideally, where a section of the law has been declared unlawful, all the persons affected should benefit,” he says.
He suggests that where courts make decisions on matters of public interest, they should be gazetted so that all the affected can benefit without having to go back to court over an issue already determined in cases filed by other parties.
According to Mr Ndubi, the current situation amounts to reopening an issue that has already been settled and can embarrass the Judiciary when different courts of the same status reach different decisions on the same subject.
“It is the Attorney-General’s office that should propose to Parliament that certain sections of the law have been declared unconstitutional, and the court verdicts should be gazetted as the law has been settled in those verdicts,” he explains, adding that gazetting the decisions makes them binding on all affected.
Law Society of Kenya (LSK) president Allen Waiyaki Gichuhi says the lawyer’s body will collect all court decisions declaring certain sections of the law unconstitutional and petition Parliament to make amendments so that those sections are removed from the statute books.
“We will also work with the Judiciary and the Kenya Law Reform Commission (KLRC) so that sections that have been declared unlawful can be posted online for the public's benefit,” Mr Gichuhi said.
High Court Judge Luka Kimaru observes that the current trend in the world is to have mentally ill people treated. Children's rights are also protected by law, and the 2010 Constitution did away with laws that violate people's basic rights.
But Senior Assistant Director of Public Prosecutions Moses Omirera believes those who drafted the laws had good intentions, which the judges might have overlooked in declaring some sections unconstitutional.
Normally, before a criminal trial begins, the court is supposed to get a medical report of the suspect’s suitability to stand trial. If he or she is mentally sick at the time he or she committed the offence, he or she is detained at the pleasure of the President.
He says the law intends to ensure that the person is sent for psychiatric treatment, care, and review before being released to the public.
“Most of the mental cases don’t recover, they only worsen. The judges are setting a dangerous precedent by declaring this law unconstitutional and ordering their acquittal. They should have left it for review by the Power of Mercy Advisory Committee (Pomac),” Mr Omirera said.
The Power of Mercy Act mandates Pomac to handle petitions filed by persons detained at the President's pleasure.
He argues that the underlying principle behind the law is that the mentally ill person “is dangerous to himself and society,” and should be kept away until they fully recover.
According to Mr Omirera, “this is the mischief the law was trying to address.”
“An accused person’s life could also be endangered because of the public wrath he or she is likely to be exposed to. These are the dimensions, and I don’t understand the basis for declaring these provisions unlawful,” he says.
Mr Michael Kagika, Pomac CEO, says that there has been a lot of discussion on recent pronouncements, especially regarding persons detained at “the pleasure of the President” for offences they committed as minors. “We want to come up with recommendations in areas where gaps have been identified, and we are already collaborating with players in the justice system to see if we can make specific recommendations,” he said.
He adds that they are also studying the to identify the legislative gaps so that they can make useful contribution to the emerging issues.
“We have also asked for data on all those detained at the president’s pleasure for offences they committed as minors. We want to understand those numbers to see what we can do as a committee,” Mr Kagika said, adding that only then will they be able to advise the President appropriately.
Justice Kimaru says that as a result of the findings by different courts, and given the developments in criminal justice, the National Committee on Criminal Justice Reforms (NCCJR) chaired by High Court Judge Grace Ngenye has been looking at the Penal Code, CPC and criminal law in general, from plea taking to sentencing, with a view to reviewing the criminal justice system.
He adds that the problem is that most of the country’s criminal laws date back to colonial times and have not been reviewed, which is why NCCJR was formed in January, this year.
The verdicts by different judges have, nevertheless, given relief to the few who challenged. Others are still in prison and might have to file their own individual cases to benefit.
The number in prisons also continues growing since courts are still sentencing people to be detained at the President’s pleasure since the law has not been amended.