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Perjury cases fast finding their way into Kenyan justice system

By Charles Kanjama | July 14th 2013

Charles Kanjama

Chapter 11 of the Kenyan Penal Code deals with offences relating to the administration of justice. These include perjury, subornation of perjury, false statements by interpreters, contradictory statements on oath, malicious information, fabricating or destroying evidence, conspiracy to defeat justice, interference with witnesses, compounding felonies and contempt of court. It is a whole gamut of crimes, with penalties ranging from a maximum of three years imprisonment for the lesser offences, to seven years for perjury, to life for malicious information causing death to victim.

As a practising lawyer, I have no doubt that there is a growing scourge of perjury and related offences in our legal justice system. And it seems to me that the practitioners of the legal justice system are yet to treat these offences with the seriousness they deserve. Advocates frequently, under false cover of attorney privilege, are involved. Litigating parties are often engaged in this vice. The courts are typically casual in their approach to perjury. Even police investigators and public prosecutors are remiss to these vices. It is only Madam Justice who is groaning under the weight of the numerous assaults on her integrity.

Section 108 of the Penal Code defines perjury as follows: “Any person, who in any judicial proceeding, or for the purpose of instituting any judicial proceeding, knowingly gives false testimony touching any matter which is material to any question then pending in that proceeding or intended to be raised in that proceeding, is guilty of... perjury.”

The offence of perjury cannot be proven save with the evidence of two witnesses. The prosecution must show that the accused intended to deceive, and did so in respect of a matter that was material in judicial proceedings. Typically, accused persons undergoing criminal trial are not charged with perjury, since their constitutional right against self-incrimination may insulate them from perjury. Perjury can be offensive or defensive, and is likely to be graver when it is offensive in nature. An example of offensive perjury is the English case involving British politician and prolific fiction writer, Jeffrey Archer. In 1986, while deputy chairman of Margaret Thatcher’s Conservative Party, a British tabloid reported that he had paid for sex with a prostitute. Archer resigned due to the scandal, but sued the newspaper for libel, won the case and obtained 500,000 pounds in damages. Years later in 1999, a friend disclosed that Archer had fabricated a false alibi of his movements in the libel case. Based on the new evidence, Archer was tried and found guilty of perjury and sentenced to four years imprisonment.  The English Court of

Appeal upheld the trial court sentence, and noted as follows: “There are many factors to be considered in determining the... sentence for perjury and related offences. There isn’t, in our judgment, any distinction to be drawn according to whether the proceedings contaminated were of a civil or criminal nature... Factors to be considered include... the number of offences committed, the timescale over which they are committed, whether they are planned or spontaneous, whether they are persisted in, whether the lies or fabrications have any impact on proceedings in question...”

Defensive perjury is also serious enough to merit imprisonment. In the American case involving disgraced sprinter Marion Jones, she testified on oath to federal agents and two grand juries, and denied using banned steroids before the Sydney 2000 Olympic Games, where she won five medals. Under the pressure of investigations, she later admitted to lying on oath. She was eventually tried for perjury, and as a result of a plea-bargain agreement, sentenced to six months imprisonment in 2008. The trial judge admonished her. “The offences here are serious. They involve lies made three years apart (and not) a one-off mistake.”

The Supreme Court of India, while urging perjury proceedings against Karrupan, an advocate and head of Madras Bar Association, noted: “Unscrupulous litigants are found daily resorting to utter blatant falsehood in the courts, which has to some extent, resulted in polluting the judicial system... Effective and stern action is required to be taken for preventing the evil of perjury.” Due to the contradictory witness testimony, the IEBC Makueni Senate case has now put the question of perjury in focus in Kenya.


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