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State dilemma on charges to prefer against Mackenzie

 Detectives exhumng bodies at Shakahola in Malindi, Kilifi County. [Marion Kithi, Standard]

Two weeks after his arrest, the State is grappling with what to charge Pastor Paul Ntenge Makenzi with due to what detectives say is the complex nature and enormity of the crimes he and his accomplices allegedly committed.

The matter has been muddied by the discovery of mass graves at Shakahola which police believe contain remains of parishioners of Mackenzie’s Good News International Church, apparently lured to starve to death.

Legal scholars like Prof Morris Mbondenyi say indicting and successfully prosecuting Makenzi will be an intricate exercise due to the nature of evidence and credibility of witnesses required.

Mbondenyi said the intricacy of the case also stems from the fact that the crimes allegedly committed by Makenzi touch on the novel areas of criminal litigation yet to be tested in Kenyan courts.

“It will be a very complicated case for the prosecution. Fasting is an accepted Christian practice not unless the State establishes that he intended to lure people to die.” 

Mbonyenyi who is the former Chief Executive Officer of the Kenya School of Law KSL and a human rights lawyer said the State’s easy route was preferring a charge of manslaughter against the pastor on many accounts.

“In criminal law, we have mens rea; the act is not culpable unless the mind is guilty. If the pastor acted without mental fault he is not liable in criminal law. The easiest route for the State to get a conviction is to charge him with manslaughter,” said Mbondenyi.

Some lawyers say the State can indict Makenzi with no less than 20 charges under the Penal Code, Children's Act and the International Criminal Act 2018 concerning genocide and crimes against humanity.

According to the Commission for Human Rights and Justice Executive Director Julius Ogogoh, if those rescued refuse to cooperate then action and actionable evidence pointing to criminality would be very difficult to establish.

Lawyer Abubakar Yusuf, said Makenzi can also be charged with conspiracy to commit a crime, kidnapping, counselling to commit suicide, criminal negligence, to aiding and abetting crimes.

“In this case, an aider and abettor is criminally liable to the same extent as the person committing the crime. If it is attempted suicide, he is liable if he aided the crime.” 

Richard Ngare, another Mombasa-based lawyer, said Makenzi can be charged with aiding suicide because he denied his followers a chance to procure food.

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