Judge queries power of mercy on mentally ill

The President may soon lose the power to release mentally ill offenders if a recent declaration by a judge stands.

Currently, courts are allowed to jail offenders of unsound mind until the President sets them free on recommendations from the Advisory Committee on the Power of Mercy.

That power now faces challenge after Mr Justice Kiarie Waweru declared unconstitutional a section that allows judges and magistrates to detain people who, despite being medically sane, cannot understand court proceedings.

Justice Waweru, sitting in Meru, described as “cruel, inhuman and degrading” section 167 (1) of the Criminal Procedure Code because it leaves prisoners with uncertainty on how long they should be detained.

“It is my opinion that keeping a sick person for an indefinite period in a prison is cruel, inhuman and degrading,” he wrote in a ruling he made on May 10.

Justice Waweru was ruling on an appeal by a man jailed for attempting to defile a five-year-old girl.

He ordered for a psychiatric examination to be conducted on the man before any further order can be made by the magistrates court.

The judge has obtained support from Mr David Macharia, the Assistant Commissioner-General of the Kenya Prisons Service and Mr Davis Malombe, the Deputy Executive Director of the Kenya Human Rights Commission (KHRC).

In Mr Macharia’s view, it is for the good of prisoners to know how long they will stay behind bars.

“It would be better even for the inmates themselves; because you know for sure, ‘I will stay for 22 or 30 years’. You can even programme yourself,” the Prison’s boss told the Sunday Nation.

NOT RIGHT
Mr Macharia said that currently, prisoners who are detained on presidential pleasure depend on the Power of Mercy committee to determine if they are fit to be released.

And in Mr Malombe’s opinion, the judgment is likely to end the era of viewing persons with disabilities with a different pair of lens.

“Persons with disabilities are guaranteed the freedom to make choices and mistakes like all other Kenyans. Unfortunately, they are treated differently like being sentenced at the pleasure and mercy of the President whenever they make such mistakes,” the KHRC director said.

He added: “The Constitution guarantees rights to all people in Kenya irrespective of whether they are disabled or not … The approach that the judge took is commendable.”

According to Justice Waweru, the current system tortures the mentally unfit.

Mr Paul Wechuli, a resident magistrate at the Tigania Law Courts, said the section facing abolition applies to those who despite medical reports saying they are fit to stand trial, do not appear to be in the right frame of mind.

“Maybe when he comes to court, you notice that the man behaves funny but then maybe you have a report there showing that he is okay,” Mr Wechuli explained.

The magistrate also contended that it is not proper to detain such people for an indefinite period of time.