The High Court yesterday ordered that no prison facility in the country is to detain any persons found guilty but are mentally ill under the President’s pleasure.
In a judgement, Justice Anthony Mrima 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.
“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.
Justice Mrima noted that a prison facility shall only accept such persons with mental challenges committed to the facility under the orders of the court.
He ruled that such a person ought to be accorded the necessary protection and assistance required under the Constitution and the law.
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.
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.
Additionally, 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 order came following a suit filed by five Kamiti Maximum Prison inmates, who challenged sections of the Criminal Procedure Code (CPC).
The petitioners; Isaac Ndegwa Kimaru, Philip Mueke Maingi, Peter Kariuki Muibai, Peter Thanga Kago and Hesbon Onyango Nyamweya sought a declaration that any person with mental challenges who face a criminal trial or has been tried, is ‘guilty but insane.’
In his finding, the judge noted that the impugned sections were declared unconstitutional long ago, but the CPC has not been amended so as to align the statute with the Constitution and in line with the various decisions.