By PRAVIN BOWRY

Age-old, tried and tested boundaries of criminal law and criminality are all of a sudden being given confusing and unfathomed dimensions ostensibly under the new constitutional order.

That all this is happening in the High Court is all the more of concern because the court sets a precedent and, rightly or wrongly, any controversial and suspect decision is binding on the lower courts until overturned by the higher court and, if not appealed, the judge-made law is cast in stone for eternity.

A Judge of the High Court Hon. Justice R. Langat Korir in a ruling given on 2nd May, 2013 in the murder case of Republic vs Mohamed Abdow Mohamed (Nairobi High Court Criminal Case No. 86 of 2011) has opened Pandora’s Box in the realms of Kenyan criminal law.

The decision, if not addressed, discussed and arguably overturned, whether by the Court of Appeal or by statute, is likely to lead to intricate and adverse legalities.

The allegation in the case were that on 16th day of October 2011 at 10th Street in Eastleigh in the Starehe District of the Nairobi County one Somali man by the name Mohamed Abdow Mohamed, with others killed another Somali Osman Ali Abdi and was charged with the offence of murder in the High Court.

And let the learned judge take it from there:

“The accused was arraigned in court on 19th November 2011 and he pleaded not guilty to the charge.

The trial was set to commence on the 26th March 2012.

On the date of hearing, however, Mr Kimanthi for the State informed the court that Mr Bonyo, Counsel on record holding watching brief for the deceased’s family had written to the Director of Public Prosecutions requesting that the charge be withdrawn on account of a settlement reached between the families of the accused and the deceased respectively.

The letter in question read in part:- The two families have sat and some form of compensation has taken place wherein camels, goats and other traditional ornaments were paid to the aggrieved family.

Actually one of the rituals that have been performed is said to have paid for blood of the deceased to his family as provided for under the Islamic Law and Customs.

These two families have performed the said rituals, the family of the deceased is satisfied that the offence committed has been fully compensated to them under the Islamic Law and Customs applicable in such matters and in the foregoing circumstances, they do not wish to pursue the matter any further be it in court or any other forum”.

Mr Kimanthi then proceeded on the instructions of the Director of Public Prosecutions to make an oral application in court to have the matter marked as settled.

He cited Article 159 (1) of the Constitution which allows the Courts and Tribunals to be guided by alternative dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms.” 

The judge accepted the submissions, allowed some affidavit evidence most unusually and ruled that the ends of justice will be met by “discharging” the accused.

Legally profound issues are posed here.

Does the case now dictate that in Kenyan criminal law customary law and Islamic law are applicable? Can a criminal offence be excused by law by payment of blood money?

Has the court jurisdiction or mandate to “settle” criminal cases, receive affidavit evidence in murder trials and “discharge” an accused in a ruling without conviction?

Punitive losses

Article 159 (1) of the Constitution it can be surmised does not extend to courts in criminal matters and cannot give power to the Director of Public Prosecution to be privy to settlements without invoking the laid down procedure of plea bargaining or excusing murder suspects.

The learned judge and the prosecution further failed to consider the provisions of law as laid down by Article 2(4) of the Constitution.

The Article rightly states that the Constitution is the supreme law of the country and “any law including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid”.

Well established and rudimentary principles of law remain that criminality is a matter between the state and the accused not citizen and citizen.

The decision also risks putting the basic purpose of criminal law in jeopardy. To be specific, the prohibiting purpose maybe negated.

Conducts that are unjustifiable, inexcusable or substantially threaten to bring harm to individuals as well as society can no longer be adequately prohibited. With respect, court failed to note that the criminal responsibility on its part is high.

It failed to consider the extent to which criminal responsibility has developed in the institutional context, including policing, criminal procedure and practices of punishment.

The retributive aim of legal punishment is that legal offenders should have punitive losses or deprivations imposed on them that are proportional to the harms they caused their victims, taking into account the culpability offenders displayed in acting. Excusing serious violent crime in Kenya should not be an option on any score.

The writer is a lawyer.

bowryp@hotmail.com