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How innocent men are sent to the gallows

COUNTIES
By Nyambega Gisesa | July 2nd 2014
John Cardinal Njue serves Holy Communion to prisoners at Kamiti Maximum Security Prison in March, during a visit to confirm prisoners who had earlier been baptised into the Catholic faith. [Photo: Mbugua Kibera/Standard]

Kenya: In early 1993 in a village in Machakos County, neighbours rose against each other over land. The fight turned tragic when the body of a man was discovered dumped on the roadside one morning. The victim was identified as Bernard Kioko.

When police arrived, they arrested Boniface Mwalili Yuma, who was one of those involved in the fight. Yuma was subsequently charged and eventually sentenced to death in the same year for the murder of Kioko, despite maintaining his innocence. He went to the Court of Appeal in 1994.

Today, Yuma is one of the many death row convicts whose wait for justice has turned into mental anguish. He has spent 21 years behind bars so far and his appeal is far from being resolved. Yuma was jailed at the prime age of 36. Although he is approaching his sunset days, he has not given up the fight for his exoneration and freedom.

“I am now an old man but I still hope that my lucky day to go back home will eventually come,” he says sadly.

Yuma, who has no legal representation, says his appeal has stalled because his criminal court case file cannot be traced. The Standard unsuccessfully tried to locate his case file number 02 of 1993 and High Court appeal number 08 of 1994 at the Machakos law courts.

Yuma’s situation is emblematic of capital punishment in Kenya, a system so riddled with flaws in evidence, questionable rulings and legal incompetence that justice often appears forsaken.

Many of the convicts on death row have their lives frozen in time because they were either unrepresented or received the worst legal representation - usually pro bono - because they could not afford a lawyer. Many of them received the ultimate punishment based on evidence that too often was inconclusive and sometimes nearly non-existent. Others were forced by prosecutors to admit to crimes.

Our investigations seem to have unearthed the common narrative that death row inmates are condemned in trials so rife with error that when they come up for appeal, the senior judges wonder what basis of law was used to convict them in the first place.

In the first comprehensive examination of death penalty cases since capital punishment was introduced in the country 121 years ago, The Standard has identified numerous fault lines running through the criminal justice system that reveal a problem begging for help. It is a system that conceivably sends innocent men to the gallows, in many cases for minor crimes or crimes they never committed.

We have attempted to study exhaustively appellate opinions and briefs, trial transcripts and lawyer disciplinary records as well as conduct scores of interviews with witnesses and lawyers found. Shockingly, many of these cases have dragged on in court for decades.

Sham reforms

Although the Judiciary has reformed since Willy Mutunga became Chief Justice, not much appears to have been done with regard to capital punishment.

Despite the introduction of modern filing systems, a number of death row inmates' files are either misplaced or completely lost. Some of the accused were convicted despite the investigations being carried out by unqualified personnel. Witnesses were not held to account and important evidence like alibi was overlooked.

At least half of the cases we studied were characterised by at least one of the above elements. Sometimes, all of the elements appeared in a single case.

In June 2010, the High Court in Nairobi saved university students Gordon Onyango Wanyange, George Mungai Wanjiru, Brown Wanjohi, Victor Mulinge and David Mwangi from the hangman’s noose, ruling that they were sentenced to death without being identified.

Lady justices Jessie Lesiit and Joyce Khaminiwa stated that “Wanjohi and Mulinge were sentenced for the offences (possession of firearms and violently robbing the then former High Court Registrar William Ouko and three others) yet no witness identified them nor was any evidence brought to court.”

The problems afflicting death-penalty trials have generated great concern and prompted the Legislature to examine possible reforms. In the past one year, the Chief Justice and Chief Registrar of the Judiciary have made promises to death row inmates to push for reforms in the death penalty.

Here are a few examples of cases that caught our attention, some of them bordering on the absurd:

The case of Raphael Isolo Echakara - On the night of November 11, 2008, the body of Maseno University student Irene Achieng Oluoch was found in her rented house in Kanyoni Flats, Nyanchwa Estate in Kisii. Later, Kenyatta University nursing student Raphael Isolo Echakara and another man identified as Harrison Chegugu were sentenced to death for the murder. Echakara was the former boyfriend of Irene’s sister Pauline.

However during the appeal, the Court of Appeal stated that "a careful perusal and analysis of what the prosecution availed before the trial court reveals so many loose ends that deserved consideration and which upon the same consideration would have made it difficult, if not impossible, for a court of law seriously applying its mind to the facts of the case and to the law, to convict upon reliance on the same."

Pineapple thieves

Too drunk to stand but sentenced to death for robbery with violence: Michael Njoroge Kimaiko was a man too drunk to have committed robbery with violence but he was sent to gallows. In October last year, the High Court freed Kimaiko, who had been on death row for five years, stating, “He was too drunk to have committed robbery with violence."

Kimaiko was sent to the gallows in 2008 for allegedly stealing a keg beer pump worth Sh1,500 and a Samsung phone from a bar in Kwambira, in Kiambu. In his successful appeal, High Court judge Mary Achode ruled that she was satisfied that Kimaiko was too drunk to have committed the offence.

Death penalty for stealing pineapples: Two young boys were sentenced to death for stealing three pineapples from a farm in Thika. During the robbery, the boys injured the dogs guarding the farm, but no human being was injured.

However, they were charged with robbery with violence. The police convinced them that if they pleaded guilty to the charge, they would be set free. Illiterate and not conversant with the law, the boys pleaded guilty and were sentenced to death. Being minors, they would be confined for the rest of their lives at the pleasure of the President.

Framed twins sentenced to death: Cliff and Edwin Mokua are identical twins. In October 2010, they were both arrested and charged with robbery with violence in Nyamira, a charge they argue they was a set up. They were accused of carjacking and robbing a man of his car valued at Sh850,000. However, they have told the courts that the complainant owed them money and framed them when they demanded their money back in a business deal that involved the sale of a photocopier machine worth Sh40,000.

The twins were sentenced to life in prison by a Nyamira Court. When they appealed in the Kisii High Court, the judges felt that the sentence from the lower court was “lenient” and sentenced them to death. They have since lodged an appeal in the Court of Appeal.

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