Court declares detention of mentally ill convicts illegal

NAIROBI, Kenya Feb 3 – The High Court has declared that persons found guilty but are mentally ill should not be held under the President’s pleasure.

In a ruling by Justice Anthony Mrima, “an accused person 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.”

Justice Mrima stated that such a person ought to be accorded the necessary protection and assistance required under the Constitution and the law.

“Their imprisonment at the president’s pleasure is unlawful to the extent that it violates the concept of separation of powers and the principles of constitutionalism under the repealed constitution and the constitution of Kenya, 2010,” he stated.

The ruling followed a case filed by five Kamiti Maximum Prison inmates, who challenged sections of the Criminal Procedure Code (CPC).

The five wanted 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 also 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 therefore 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 commit ted 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.

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