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Judges invalidate imprisonment on President’s order

Friday September 13 2019


Justice Jacqueline Kamau ruled that keeping a mentally ill person in jail indefinitely is cruel. PHOTO | FILE | NATION MEDIA GROUP 

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Imagine being in jail for 23 years and not knowing when you will be freed. And worse, you were sentenced when you were a minor.

That was the situation T.O.O, as he was identified, and four others found themselves in. His colleagues have also spent between eight and 21 years behind bars.

Tired of waiting for the Power of Mercy Committee to consider their plight, the five, now grown-up men, filed a constitutional petition.

They argued that condemning one to serve time at the President's pleasure offends Articles 53(f) (2) of the Constitution, Article 37(c) of Convention of the Rights of the Child and Article 2(b) of the Africa Charter on the Rights and Welfare of the Child, among other international laws Kenya has ratified.

They also argued that provisions of section 166 of the Criminal Procedure Code (CPC) are unconstitutional to the extent that they take away the judicial function to determine the nature of the sentence or consequence of the ‘special finding’, contrary to Article 160 of the Constitution by vesting the discretionary power in the Executive.

Justice John Mativo agreed with them and quashed their sentences, ordering their immediate release.



Justice Mativo’s ruling in 2017 has forced judges to impose fixed jail terms.

In his judgment, Justice Mativo said that: “The indeterminacy of the sentence exacerbates the cruel, inhuman or degrading nature of the punishment on grounds that the maximum period of incarceration remains unknown to the prisoner and dependent on the executive.”

The law allows the President to order a person to be detained in a mental hospital, prison or other suitable place of safe custody.

The officer in charge of that facility is then required to write a report to the minister under whose docket the institution falls for the consideration of the President in respect of the condition, history and circumstances of the detainee, at the expiry of three years from the date of the President’s order.

The process is repeated at the end of every two years from the first order. But tired because of the lengthy and uncertain periods of detention and after Justice Mativo’s ruling, judges are now handing such persons specific sentences.


Children in conflict with the law are usually sent to Borstal institutions, which are only three in the country — Shimo la Tewa at the coast, Shikusa in Kakamega and Kamae Girls, an annex of the Kamiti Maximum Prison.

However, the institutions face myriad challenges in fulfilling their rehabilitation mandate due to low funding, staff shortfalls, poor living conditions and outdated laws.

In July, Justice Jessie Lesiit sentenced two people who had been found guilty of murder, but insane, to 13 and 10 years imprisonment.

The judge ordered the sentences to run from the date they were arraigned. The proceedings were to be typed and a copy of the record and notes sent to the ministry concerned for consideration by the President.

“I can understand the frustrations we face as a court when you find children you detained at the President’s pleasure still incarcerated several years later, and worse still without any word from the POMAC (Power of Mercy Committee) or Ministry concerned,” the judge said.


Similarly, Justice David Majanja directed a 26-year-old man who had been found guilty of killing his grandmother to be committed to Mathare Hospital for 15 years subject to review by the court before the expiry of every two years.

Justice Kiarie Waweru had in 2016 ruled section 167(1) of the CPC, which provides that a person suffering from mental disability and is unable to understand the proceedings is to be detained at the pleasure of the President, unconstitutional as it violates Articles 25 and 29 of the Constitution that prohibit cruel, inhuman and degrading treatment.

Justice Jacqueline Kamau had also ruled that keeping a mentally ill person in jail indefinitely is cruel, inhuman and degrading treatment contrary to Articles 25 and 29 of the Constitution.