For five years, punishment for robbery with violence has not fit the crime.
Inmates convicted of robbery with violence could be released because courts gave different sentences to the same crime and failed to allow defendants time for mitigation.
Twelve inmates serving different sentences – ranging from a few years to death – had petitioned the court, complaining judges imposed different sentences for the same crime. They argued they have been denied equality before the law guaranteed by the constitution.
Joseph Kaberi Kahinga, the lead petitioner who swore an affidavit for the other 11 fellow inmates, complained that some of them, like him, were given death sentence while others were allowed to serve seven years for the same offences.
He said most of the judges who handed down the death sentence insisted on the harsh punishment, citing rigidity in law. They had no discretion.
The rulings occurred before the December 2017 Supreme Court’s Muruatetu case that gave discretion to judges in imposing the death sentence.
It ruled the mandatory death sentence was unconstitutional, but did not rule capital punishment itself unconstitutional. Previously, robbery with violence always attracted a death sentence and still does.
Petitioner Kahinga also complained that the petitioners were denied the right to mitigate their circumstances before sentencing.
He said “even if they had exercised their right to mitigate their sentences, their arguments would not have been considered given the declaration by the courts that the mandatory death sentence as provided by the law did not allow the court’s exercise of discretion and the petitioners’ right to mitigate was denied as not being justiciable.”
The High Court had agreed with them in 2016, ruling that the Attorney General and state regularise the law. But years down the line, nothing has been done.
The Katiba Institute has sued the state to free about 10,000 convicts because of the failure of the AG to implement the decision of the court, saying it was impunity and continued the disobedience of the Supreme Court order.
The High Court had given the AG 18 months to collaborate with Parliament and other state organs to amend these laws, but nothing was done.
“Katiba Institute has filed a petition challenging the continued use of laws criminalising robbery with violence and attempted robbery with violence. We did so because the laws upon which numerous convictions were based were declared unconstitutional by the High Court over five years ago,” the lobby said.
The court decision in question followed a petition brought before the High Court by 12 litigants and a bench of three judges declaring that “Sections 295, 296(1), 296(2), 297(1) and 297(2) of the Penal Code do not meet the constitutional threshold.”
The sections of the law, according to the judgment, did not set out “in sufficient precision, distinctively clarifying and differentiating the degrees of aggravation of the offence of robbery and attempted robbery with such particularity as to enable those accused to adequately answer to the charges and prepare their defences.”
As a remedy, the judges, including Jessie Lesiit, Luka Kimaru and Stella Mutuku, recommended the AG, the Kenya Law Reform Commission and relevant agencies to prepare a detailed review in the context of the judgment. It recommended they advise Parliament to appropriately amend Sections 295, 296(1), 296(2), 297(1) and 297(2) of the Penal Code.
The review was to help in “removing the ambiguity and inconsistency inherent in the said sections as regards the definition of the offence of robbery and differentiate and graduate the degrees of aggravation and the attendant penalties.”
The Katiba Institute said that for five years, the AG has failed to comply with the court order and continued to convict robbery with violence and attempted robbery suspects using the annulled laws as though the judgments did not happen.
“Unfortunately, the state failed to take any corrective action and continued to enforce the laws as if the court’s decision had no bearing. The judgment became final and binding law in March 2018. Due to the state’s non-compliance with the judgment, more than 10,000 people have been convicted of offences that no longer exist under Kenyan law,” the rights group said.
It said that the failure by the state to regularise the laws has made the efforts of the petitioners meaningless.
“Victims who cooperated with the state in securing these convictions must now come to terms with the realisation their efforts were in vain, contributing unwittingly to a constitutional violation," Katiba Institute said.
“Anticipating debate on this petition, some may argue that supporting it aids criminals, implying they should not enjoy the same constitutional protection as others. Contrary to this perspective, the constitution safeguards the rights of all individuals, regardless of the nature of the alleged offence.”
To those who may argue the convicts deserve to be behind bars, the lobby said, “Kenyans are urged not to overlook human rights violations simply because the victims may be considered disreputable.”
“The focus should be on holding the state accountable for its failure to implement necessary criminal justice reforms while also addressing the broader issue of the State’s consistent non-compliance with court judgments,” the lobby said.