One of the things Katiba Corner sometimes tries to do is to explain court cases.
What courts do is surely mysterious to many people, but behind the jargon, and the theatre, are judges mostly genuinely trying to do justice in what are sometimes tragic circumstances.
Now, when newspapers seem to carry many stories about people killing those close to them, as well as many about mental illness, a recent Court of Appeal case is of particular interest.
THE STORY
Wakesho v Republic ([2021] KECA 223) was decided by the Court of Appeal in Mombasa in December. (The reference [2021] KECA 223 is an example of a good initiative to give each judgment a clear separate reference number.)
The case was a tragic one. Wakesho killed his mother, and was found sitting calmly near the body. Relatives said Wakesho was not mentally ill. And two reports by psychiatrists found that he was “normal”. Of course, they could not really say with precision what he was like when he killed the mother.
THE LAW
The Penal Code says that a person is not criminally responsible if — at the time — they had some disease affecting their mind. But more than that, the disease must have made the person either unable to understand what they were doing or understand that it was wrong.
Extreme examples might be a person who believed they were killing an evil spirit not a person, or a person who believed they had a legal duty to kill another.
A disease affecting the mind might not be something we usually think of as insanity – a sleepwalker might be covered.
Kenyan criminal law is often out of date. It does not cater for the possibility that a person is unable, because of a disease, to restrain themselves, though they knew they were killing someone
Nor does it deal with the possibility that some sorts of mental condition might make the person responsible to some extent for what they have done, but not to the same extent as murder which means basically a deliberate intent to kill or at least seriously injure the victim.
Oddly, if the “insanity defence” succeeds the person is to be held “Guilty but insane”. It is odd because the court is saying the person was not legally responsible for what they did yet they are found “Guilty”. Many countries now have a possible verdict of “Not Guilty, on the ground of insanity”.
But that is not the end of the story. The person, even if not legally to blame for what they did, might still be in need of medical care, and be a possible threat to others.
Our law says the court must report the case for the President to decide, and “The President may order the person to be detained in a mental hospital, prison or other suitable place of safe custody (Criminal Procedure Code, section 166).” Is this an appropriate way to deal with the situation?
Kenyan courts have wrestled with these issues.
In 2018, Justice David Majanja held that giving this responsibility to the President was unconstitutional. Sentencing people was a responsibility of the courts, not the government. He took the power into the court’s hands and ordered that the accused person in the case before him should be committed to Mathari Mental Hospital for 15 years, but this should be regularly reviewed by the court not less than every two years.
Justice Jessie Lesiit in 2019 did not think it right to have the court continuing to supervise the case. But she sentenced an accused to a fixed term of imprisonment – leaving it to the government to decide what happens then.
But that power of the Executive would have to be exercised under the Constitution. And that provides for the Advisory Committee on the Power of Mercy which is to make recommendations to the President on pardons, reducing sentences and so on, and the President must act on its recommendations.
COURT OF APPEAL
Wakesho had been found guilty of murder by the High Court and sentenced to death. The judge had said the evidence of insanity was not strong enough, and he had no choice on the sentence of death because the Penal Code made it compulsory. This was before the Supreme Court in the case of Muruatetu, in 2017, had held that this mandatory sentence was unconstitutional – the court must have power to impose an appropriate sentence.
The Court of Appeal held that Wakesho was in fact suffering from mental illness – despite the two psychiatrists’ reports that said he was not, and the Judge’s decision. The issue had come up constantly in the case. And there was some evidence that the accused person had been to hospital for psychiatric treatment before (though there were no details). The court itself felt from observing him that he was suffering from mental illness.
The decision is slightly surprising – though motivated by concern and the desire to do justice. Courts should surely be careful to take seriously the reports of psychiatrists – though the final decision does rest with the court. However, it also true that his behaviour at the scene of the crime was odd.
So the court held that the High Court should have found Wakesho guilty but insane.
But what to do with him?
Here the Court of Appeal seems to have found itself in a difficult position. Should they declare Section 166 of the CPC unconstitutional? If not they had to just ensure the matter was placed in the hands of the President. Or should they take the Majanja path or the Lesiit path?
But, strangely the lawyers in the case had not really raised the question of whether section 166 was constitutional – and apparently the court had not done so before they came to write their judgment. And courts ideally should not decide issues without having the benefit of arguments from the parties or lawyers.
On one hand they felt they could not follow earlier courts in holding that it was wrong to give the executive a role in sentencing – because the Supreme Court had said that its decision in the Muruatetu case was only about the situation in that case (murder and a mandatory death sentence). (Waikwa Wanyoike criticised the Supreme Court about this “clarification” of its decision in a Katiba Corner article in July last year).
But the Court pf Appeal did not apply Section 166. They did not just leave the matter to the President. They had a third approach: They said Wakesho must be immediately be taken to a mental hospital for treatment, and remain until a psychiatrist in charge of the hospital “certifies that he is no longer a danger to society or to himself.”
This is also a bit odd: the responsibility for deciding how long he would remain detained is given over to the medical profession.
Finally the court did say that Section 166 was unsatisfactory – and the court should be able to impose appropriate measures to suit the circumstances of each case. They also said it made no sense to have a verdict of “Guilty but insane”.
The court referred the whole matter to the Attorney General. In fact, there is a National Committee on Criminal Justice Reforms, appointed 2017, which will hopefully report in these matters soon.
It is now several years since judges began to say the law was unconstitutional or at least unsatisfactory. The same is true of the law that says if a child is convicted of a murder it is for the President to decide how long the child is to be detained.
Since at least 2017, courts have been saying this is unconstitutional and violates the right to a fair trial. Again this week, a judge held this was unconstitutional. This was a case about a person sent to prison as a child 16 years ago.
How many other people are being held “at the President’s pleasure” in our jails and Mathari, having been forgotten about?
