People accused of incitement and hate-mongering will no longer be required to prove their words were not meant to cause havoc or bring destruction and death.
Instead, the burden will be on the State to prove the suspects' guilt. This is after a three-judge bench yesterday declared Section 96 of the Penal Code, which lays the burden of proof on the accused persons, as unconstitutional.
Justices Jessie Lesiit, Luka Kimaru and John Mativo found that the section deems an accused person to be guilty even before he or she is tried and, therefore, in breach of the right to be presumed innocent until proven guilty.
According to the High Court judges, if the section is allowed to stand it would mean courts ought to declare a person accused of incitement to be guilty even when the evidence produced by the State is not watertight.
"The impugned provision manifestly transgresses the presumption of innocence in a criminal trial. The reverse onus of this kind imposes a full legal burden of proof on the accused. Accordingly, after hearing all the evidence, the court is uncertain as to where the truth lies; the constitutional presumption of innocence is replaced with presumption of guilt,” the judges observed.
Burden of proof
They continued: “The provision shifts the legal and evidential burden of proof to the accused person thereby infringing the presumption of innocence. The section also offends the long standing rule of the common law on the burden of proof that it is always for the prosecution to prove the guilt of the person.”
The ruling was made in a case filed by former Machakos Senator Johnstone Muthama challenging charges pressed against him by the State for his utterances on September 23, 2015 during a political meeting held at Uhuru Park.
The court, however, failed to find that the Director of Public Prosecution (DPP) was biased against the politician. Muthama had argued that Gatundu MP Moses Kuria, Prof Mutahi Ngunyi and former Senator Isaac Melly had also made inflammatory statements but were let off the hook.
The judges said Muthama had not provided evidence to show that Kuria, Ngunyi and Melly were handled with kid gloves. The DPP was ordered to drop the charges against Muthama. The court also recommended that the Attorney General table a bill in Parliament to change Section 96 in a year.
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