The government has asked the Court of Appeal to jail for life 25 naval soldiers who were acquitted for deserting the military ten years ago.
The State, through the office of Director of Public Prosecution (DPP), has said that failure to do so, will cripple Court Martials’ powers to instil discipline in the forces.
The DPP’s office has expressed fears that court martials will be rendered toothless should the appellate court fail to overturn the High Court’s decision that had set the former soldiers free.
“The applicant is apprehensive that if the decision of the superior court is left unchallenged, it will not only set a bad precedent but also curtail the powers of the court martial as a disciplinary mechanism of the military forces,” Principal Prosecution Jami Yamina said.
“It will also visit great uncertainty to the forces as to what constitutes the offense of desertion as opposed to that of absence without leave,” he added.
He said that the government was anxious that matters of national security were in jeopardy because of the High Court’s interpretation.
A court martial had sentenced the former soldiers to life imprisonment for desertion, but Justice Martin Muya overturned the ruling and set the accused free.
Three court martials at Mtongwe base convicted the 25 former soldiers for desertion of duty. It was claimed that the soldiers left Kenya’s military to work for US security firms in Afghanistan, Iraq and Kuwait.
In his ruling, Justice Muya argued that prosecution failed to prove its case. He said that life imprisonment handed the former soldiers was excessive.
The judge noted that charges preferred against the soldiers were flawed and that the court martial erred in law and facts in making a determination that the respondents were active in service.
Justice Muya also noted that Kenya was not at war when the soldiers left the military.
Justice Muya said that it was not disputed that the litigants wanted to leave the Kenya Defence Forces because evidence adduced in court indicated the former soldiers had initiated a process to leave service.
But Senior Assistant DPP Alexander Muteti argues the ex-soldiers were acquitted on wrong premises. He said the judgment was 'not delivered according to the law.'
In the appeal, the State faults the judge for wrongly substituting charges of desertion with 'being absent from duty without leave'.
“The resulting miscarriages of justice resulted in substitution of the conviction for the offence of desertion to that of of absence without leave,” Mr Muteti said.
Mr Yamina argued that the judge acquitted the ex-soldiers in a consolidated judgement and yet they (ex-soldiers) were tried and convicted separately/individually at the court martial.
The prosecutor said actions by Justice Muya had occasioned 'an incurable miscarriage of justice' since the trial and conviction of the former soldiers were conducted on an individual basis.
“In delivering the consolidated judgment in which the Judge acquitted the ex-soldiers, the court failed in its duty to carefully examine and re-evaluate the entire record of the trial before the court martial,” the prosecutor said.
The prosecutor also faulted the judge for acquitting the respondents on the offence of desertion and entering a conviction for the offense of absence without leave, yet the defendants had clearly absented themselves from duty for more than three months.
The hearing of the appeal was on Wednesday adjourned as the ex-soldiers, through their lawyers William Mogaka and Gikandi Ngibuini, indicated they could not proceed with the case.
The lawyers asked for time to study, research and respond to the legal and weighty issues raised in the appeal where the State is also seeking to try the respondents a fresh.
Court of Appeal Judges Alnasir Visram, Wanjiru Karanja and Martha Koome directed the State and the respondents to file submissions and responses within ten days.