Hope for mentally ill prisoners after landmark court ruling

Justice Anthony Mrima (right) and other judges at the Milimani law courts. [File]

Catherine Wambugu has been in jail for seven years now. She was charged with murder, but later found to have suffered from postpartum psychosis.

Postpartum psychosis is a serious mental health illness that can affect someone soon after having a baby.  Prison cells have been her home since April 20, 2015 when she was charged with murder. Ms Wambugu has been awaiting the Power of Mercy team constituted by the President to free her.

But now Wambugu has renewed hope of being freed following a landmark judgment that has outlawed sections of the penal code that allow courts to order mentally ill persons to be held under the President’s pleasure or until such a time they are fit to stand trial.

Wambugu was the only woman in a case filed by 18 prisoners seeking to have sections 162 (4) and (5), 166 (2), (3), (4), (5), (6), and (7) and 167 (1) (a), (b), (2), (3) and (4) of the Criminal Procedure Code (CPC) declared unconstitutional. In his ruling, Justice Anthony Mrima found that holding a mentally ill person until they are fit to stand trial or jailing them under the President’s pleasure is unfair and unconstitutional.

The judgment could see thousands of mentally ill people held in prisons or at the Mathari Mental Hospital under the President’s pleasure or awaiting to be mentally fit to stand trial, freed. The judge said a finding that a person is guilty of an offense but insane is unconstitutional.

“A declaration is hereby issued that Sections 162(4) and (5), 166 (2), (3), (4), (5), (6) and (7) and 167(1)(a), (b), (2), (3) and (4) of the Criminal Procedure Code or any other law providing for the detaining of any person with mental challenges who faces a criminal trial or has been tried and a special finding made that such a person was guilty but insane and is held at the President’s pleasure contravenes Articles 25(a), 27(1), (2), (4), 28, 29(d) and (f), 50, 51(1) and (2), 159(2)(a), (b) and (d) and 160(1) of the constitution,” ruled Justice Mrima.

He continued: “Such provisions are hereby declared unconstitutional, null, and void.”

The judge observed that although courts have found that it is illegal to incarcerate mentally ill persons without a definite jail term, nothing has changed. He ordered that all those who are either detained after being found unfit to stand trial or were found guilty but insane should be taken to courts that ordered their incarceration for further orders.

Justice Mrima said the courts should also factor in the time the person has already spent in jail and their mental status.  Nicasio Njeru, a 70-year-old who has spent 12 years in jail, is among those who may be saved by Justice Mrima’s judgment. Nicasio was found guilty, but insane and has never undergone a medical assessment, review, or received treatment.

Kang’ethe Irungu,58, has been held at Kamiti Maximum Prison at the President’s pleasure since taking plea on April 19, 2012. He has never been tried, reviewed, or received any medical assistance for the last 10 years.

“The persons who are detained in prison facilities in Kenya under the President’s pleasure ought to be arraigned before the courts which committed them and the courts must take charge of those persons and make appropriate orders and directions,” Justice Mrima ruled.

The judge was of the view that the President’s pleasure, which is passed to the Power of Mercy team, can only be invoked after a court has handed a person a jail term.

He found it is a breach of the separation of powers for the President to have a say in what happens to an accused person before they are tried and convicted.

The judge disagreed with a previous judgment in a separate case that the Power of Mercy can be invoked during and after trial.