AG's error may free 12,000 suspects, convicts

A blunder by the office of the Attorney General might see thousands of suspects and robbery convicts freed.

A human rights lobby argues that the police have been arresting while prosecutors and courts have respectively been charging and convicting persons using a law that was declared unconstitutional in 2016 but was never repealed or amended.

In a case filed yesterday, Katiba Institute seeks for the release and acquittal of anyone who was either charged and convicted for robbery with violence and attempted robbery with violence from 2018 following the AG’s failure to have the law amended or appeal the judgment.

Further, the lobby states that the AG was required to report to the High Court on the progress of the amendments but this never happened.

“As of March15, 2018, robbery with violence and attempted robbery with violence ceased to exist as crimes under the Penal Code. No legal basis exists for anyone to be charged with such crimes,” says the group.

Court papers indicate that over 10,000 people have been charged with robbery or robbery with violence since July, 2018. Another 2,000 have been convicted, and some have been sentenced to death.

According to Katiba’s lawyer Eileen Imbosa, a three-judge Bench on September 15, 2016, declared sections of Penal Code penalising robbery with violence and attempted robbery with violence as unconstitutional as they were vague and did not clarify and differentiate the degrees of aggravation of the offence.

In the case, the court found the drafting of Sections 295, 296(1), 296(2), 297(1), 297(2), 388 & 389 was ambiguous and made it impossible for those accused to adequately answer to the charges and prepare their defences.

The case was filed by Joseph Kahinga, Joseph Imiemba, Fred Stuma, Joseph Mutuma, Daniel Mbuva, Joseph Mwaura, Musa Ogolla, Peter Muhiru, Titus Kimomo, Aggrey Chiteki, Wilson Kinyua and Ibrahim Halake, who were sentenced to death.

Justices Jessie Lesiit, Luka Kimaru and Stella Mutuku gave the AG 18 months to seek amendments.

The AG never appealed the judgment and no amendments have been made to date.

“They have created a constitutional crisis, destabilised the criminal justice system, threatened the very concept of access to justice, and caused uncountable harm to innumerable people,” says the lobby.

The petitioner argues that since March 15, 2018, robbery with violence and attempted robbery with violence have ceased to be offences in Kenya.