Court rules State violating Constitution by prosecuting robbery suspects under laws declared unconstitutional

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The High Court ruled that the state has been violating the Constitution for years by continuing to prosecute individuals under robbery-related laws that were declared unconstitutional in 2016.

Justice Lawrence Mugambi found that various state agencies, including the Office of the Director of Public Prosecutions (ODPP), the Judiciary, and Parliament, persistently violated citizens’ fundamental rights by arresting, charging, trying, and convicting people under Sections 295, 296(1) and 297 (1)(2)of the Penal Code long after they were invalidated.

The case stems from a 2016 High Court decision in Joseph Kaberia Kahinga and 11 Others v Attorney General, where a three-judge bench declared the provisions on robbery, robbery with violence, and attempted robbery with violence unconstitutional.

The court found the laws excessively vague, failing to clearly define the offences or differentiate degrees of aggravation, thus violating the right to a fair trial.

The court suspended its judgment for 18 months until March 15, 2018 to allow Parliament and the Attorney-General to amend the laws.

However, no amendments were made, and the state agencies continued to enforce the void provisions.

In the petition Katiba institute through their lawyer Joshua Nyawa argued that the state’s actions constituted a grave abuse of power and a blatant disregard for court orders and the Constitution.

The petitioners sought reliefs including, immediate prohibition of all charges under the unconstitutional sections, release of all individuals imprisoned under these laws since March 2018 and vacating of all related convictions.

The respondents, including the ODPP and Parliament, opposed the petitions, arguing, among other things, that the matter was sub judice (already before a court), that petitioners should have exhausted parliamentary petition avenues first, and that a blanket order would cripple the fight against violent crime.

In the judgment, Justice Mugambi dismissed the state’s jurisdictional objections.

He held that the Petition is Not Sub Judice.

He said while the 2016 Kahinga decision was a judgment in rem (binding on everyone), the current petition deals with the continuing violation of rights due to non-compliance, not re-litigating the unconstitutionality itself.

The court affirmed that the right to petition Parliament under Article 119 of the Constitution does not bar citizens from directly seeking court enforcement of the Bill of Rights against unconstitutional state conduct.

The judge found that the state, by enforcing laws declared void, violated Article 2(4) on constitutional supremacy and Article 50(2)(n) on the right not to be convicted under a non-existent offence.

This amounted to a “blatant infringement” and “an act of impunity.”

“This Court thus finds that the State through the Respondents has violated the Constitution and also, the Rights of the accused by continuing to charge accused persons under invalid legal provisions, in particular, Sections 295, 296 and 297 of the Penal Code which were declared unconstitutional,” ruled Mugambi.

While acknowledging the serious violations, the court declined to grant the immediate, blanket orders sought by the petitioners.

Justice Mugambi said that abruptly halting all related prosecutions and releasing prisoners would cause “unprecedented turmoil” and be “inimical to the overriding interest of justice.”

Instead, the court issued a supervised order to manage the transition and compel state compliance.

“Despite the violations, this Court finds that an immediate order that stops all prosecutions for robbery, robbery with violence and attempted robbery with violence would create an unprecedented turmoil and confusion that would do cause much harm and uncertainty hence more specific realistic measures under judicial supervision would eventually remedy the harm without igniting an explosive impairment of the entire criminal justice system,” ruled the court.

The court declared that since March 15, 2018, the respondents have violated Articles 2 (2) and (4), 3(1) , 20(1), 21(1),(2) and (3), 27, 28, 29, 48, and 50 of the Constitution by using the invalidated Penal Code provisions.

The operational effect of these declarations is suspended until June 30, 2027 (18 months).

During this period, said Mugambi, the Attorney-General, the DPP, and Parliament must file affidavits in court every six months, starting June 30, 2026, detailing concrete steps taken to legislatively remedy the defective laws.

Upon expiry at midnight on June 30, 2027, the declaration of invalidity of Sections 295, 296(1), 296(2), 297(1), and 297(2) will take full effect.

All pending or new prosecutions based solely on these unconstitutional provisions will automatically quash, and affected persons shall be released unless held on other valid charges.

“In the interest of administration of justice and to safeguard public interest by avoiding legal vacuum in respect of grave criminal offences and to facilitate orderly legislative intervention towards correcting the defects that led to declaration of unconstitutionality of the impugned provisions of the Penal Code, the operation and the effect of orders specified in (a) & (b) above are hereby suspended until the 30th of June, 2027 to allow for the judicial supervised interventions that would ensure compliance,” said Mugambi.