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The High Court yesterday declared that persons found guilty but are mentally ill, should not be held under the President’s pleasure.

Justice Anthony Mrima in a judgment, ruled that an accused person, who is found to be unfit to stand trial or to continue participating in a criminal case due to mental challenges or an accused who is tried and convicted of a criminal offence, but is found to have been mentally unsound at the time of committing the crime, is a person with disability.

“The person ought to be accorded the necessary protection and assistance required under the Constitution and the law,” ruled the judge.

Justice Mrima issued the judgment in a suit filed by five Kamiti Maximum Prison inmates, who challenged sections of the Criminal Procedure Code (CPC).

The petititoners want a declaration that any person with mental challenges who face a criminal trial or has been tried, is ‘guilty but insane.’

The judge also declared as unconstitutional sections162(4) and (5), 166 (2), (3), (4), (5), (6) and (7) and 167(1)(a), (b), (2), (3) and (4) of the CPC.

The petitioners are Isaac Ndegwa Kimaru, Philip Mueke Maingi, Peter Kariuki Muibai, Peter Thanga Kago and Hesbon Onyango Nyamweya.

Justice Mrima declared that detaining the said persons at the President’s pleasure, constitutes a threat to the doctrine of separation of powers and the independence of the Judiciary.

He directed that the said persons who are detained in prison facilities in Kenya under the President’s pleasure, ought to be arraigned before the courts which committed them and the courts make appropriate orders and directions.

“A declaration hereby issues that no court of law, shall henceforth commit any person facing a criminal trial found to suffer from mental challenges, to any prison facility in Kenya,” he ruled.

The judge ordered that no prison facility in Kenya shall accept and detain any person found to suffer from mental challenges under the President’s pleasure.

“For clarity, a prison facility shall only accept such persons with mental challenges committed to the facility under the orders of the court, which orders shall not include any order to hold such persons under the President’s pleasure,” he ruled.

Mental challenges

Justice Mrima ruled that the Advisory Committee on the Power of Mercy established under Article 133 of the Constitution, has no jurisdiction to deal with persons with mental challenges who are facing criminal trials or who have been tried and special findings made that they were ‘guilty but insane’ until such a time when such persons are sentenced by courts of law.

“An order hereby issues that any prison facility in Kenya holding any person with mental challenges facing a criminal trial or who has been tried and a special finding made that such a person was ‘guilty but insane’ and be detained at the President’s pleasure, shall forthwith make arrangements and arraign such a person before the court that committed the person to the prison facility,” he ruled.

He directed the Deputy Registrar of the Constitutional and Human Rights Division of the High Court  in the next 14 days, to transmit copies of the judgment to the parties in the matter as well as to the Commissioner-General of the Kenya Prisons Service, the Speaker of the National Assembly, the Registrar of the High Court and the Registrar of the subordinate Courts.

“The Speaker of the National Assembly shall take steps towards ensuring that the impugned sections of the Criminal Procedure Code, Cap. 75 of the Laws of Kenya are aligned with the Constitution and in terms of this judgment,” he ruled.

He directed the Speaker of the National Assembly to file an affidavit in court on the status of implementation of the judgment in the next 12 months.

The judge in his finding noted that the impugned sections were declared unconstitutional long ago, yes the CPC  has not been amended so as to align the statute with the Constitution and in line with the various decisions

Justice Mrima noted a case of one of the petitioners, Nicasio Njeru Ngangi, aged 70 years who has been in detention since October 5, 2010 when a special finding was made against him and has never undergone any medical assessment, review or treatment since then.