Inmates held at the President’s pleasure suffer dose of injustice

Abraham Musili, 59, has spent 26 years at Mathari National Teaching and Referral Hospital. 

What still remains a mystery is how or when he will be released from the facility having passed several mental tests that he is of a sound mind. 

Musili was a mortuary attendant at Kenyatta National Hospital where he eked his living for the longest.

His life turned upside down on a certain day and month in 1992, when he had gone out partying with a woman he was dating.

She was a banker. While at the drinking joint where they were having fun, court records indicate that another man showed up claiming to be her lover. 

Musili, court records show, sneaked out of the joint a few minutes later to another pub around Zimmerman in Nairobi where he continued to drink to numb his anger.

He later went home where he found his two children who were eagerly waiting for him.  Court records show that in his drunken stupor and still boiling with rage from the earlier incident, he took panga and slashed the two children to death.

Upon coming to his senses, he presented himself to Kasarani Police Station where he reported the incident.

He was charged with murder in 1992, condemned to suffer death by High Court judge John Khamoni (now retired) in 1992.

Upon appeal, Appellate judges, Richard Kwach, Phillip Tunoi, and Amritlal Shah ordered that he be held at the President’s pleasure two years later after concluding that he was insane at the time of committing the offence.

He was immediately transferred from Kamiti Maximum Security Prison to Mathari Hospital where he has been for the last 26 years.

Musili can no longer be taken back to Kamiti Maximum Security Prison and it is unclear whether he is entitled to resentencing following the 2017 Supreme Court’s verdict in Francis Muruatetu’s case that mandatory death sentence is illegal.  

Under Section 166 (4) CPC the officer in charge of a mental prison or hospital is required to file an initial report after three years on the mental condition of the prisoner. 

After the initial report, the officer would then make a report after the expiry of two years. 

These reports are forwarded to the President who decides to move the patient from hospital to prison, or a mental facility, or order him or her to remain under supervision.

He is among 300 inmates who have been sent to the hospital by various courts. 

During his trial at the High Court, it emerged that to numb himself from the traumatic nature of his work, he would smoke cannabis and take hard liquor.

Court proceedings show that Musili swam in money as the exigencies of the mortuary job exposed him to some good cash in form of bribes from bereaved relatives which he spent in heavy drinking and entertaining women and friends who preyed on his generosity.

Well behaved

His incarceration documents read that he is well behaved and constantly communicates with two of his children who are now adults.

At the same, he owns a huge tract of land along Mombasa Road. 

Prisoners held at the President’s pleasure can live their lifetime waiting for the day the Power of Mercy team will approve their release.

He has applied several times, but has not received an answer.

However, courts have held that sections 166 and 167 of the Penal Code, which mandate the detention of an individual at the President’s pleasure, are unconstitutional.

A report launched by Chief Justice Martha Koome last week indicates that Kenya lacks a comprehensive and consistent system for gathering data about disability, and the significant societal stigmas around disability discourage many from disclosing their disabilities.

The report further indicates that the criminal justice system lacks appropriate policies and guidelines to handle people with mental disabilities and those adjudged to be insane have insufficient service providers, and systemic challenges, including lack of coordination by criminal justice agencies during crime reporting, arrest, detention, and release.

It points out that in the event a person is released, there are no community-based care systems, stigmatisation of victims with intellectual and psychosocial disabilities, and lack of trained personnel in disability sensitivity.

 “It is abhorrent that when a 12-year-old with diminished cognitive capacity and an intellectual or psychosocial disability is interviewed by a crowd of male police officers investigating suspected defilement, those officers laugh or make crude jokes in the process,” it says.

Justice Joel Ngugi in April this year ordered that Charles Kipkoech, who had been charged with murder in 2009  should be released if a mental assessment report indicates he is fit to go back to society or when he will be treated and certified that he is now stable.

The judge was of the view that only after such treatment under observation and scrutiny would a court be able to make a determination if he warrants an order of release.

Kipkoech was found guilty of killing his uncle John Kipkoech but was found insane by Justice Hellen Omondi in 2013.

She ordered that he be held under the President’s pleasure. He has now spent eight years at the mental hospital.

The court heard that he beat his uncle to death without provocation.

Armed with a mental report letter from a doctor dated September 26 last year, indicating that he is now stable and not exhibiting any psychopathology, he pleaded that he be released.

However, an inquiry by the court painted a grim picture of his family accepting him back.

His relatives are still angry with him and he has no home to go live in. At the same time, his elderly father is sickly and cannot make any decisions while his other uncles do not want to associate with him.

The local administrators also declined to commit themselves to provide for his security in the event the court reviewed his sentence.

“This is an unfortunate state of affairs considering the mental health of the petitioner. The victim’s family are yet to forgive him,” Justice Ngugi observed.

He, however, pointed out that holding a person at the President’s pleasure is unconstitutional as it gives the President a sentencing role, breaching the separation of powers.

He is of the view that sentencing is a role of a judicial officer or a judge.

At the same time, he found that the two penal sections do now allow a magistrate or a judge to consider circumstances under which an offence was committed in order to hand an appropriate sentence.

“A sentence to hold an individual at the President’s Pleasure is an indefinite sentence which, according to emerging and evolving standards of decency and international human rights law is an inhuman and degrading punishment,” he continued.

The judge also held that the law does not provide avenues for the court to determine whether a person needs medical treatment.

He observed, “Instead, it is left to the unchecked and unreviewable discretion of the President to determine the place of detention; and whether the accused person is in need of medical treatment or attention.”

The DPP did not oppose Kipkoech’s application.

Justice Ngugi is not the only judge who has found that indefinite incarceration is illegal.

Justice Eric Ogola in yet another case of a man adjudged mentally ill and thereafter became sober, described this as mental torture, depressing, and inhuman to keep a person who has healed in a mental institution for an indefinite period of time.

The judge was determining a case filed by Peter Gitahi who had been tried for murdering his uncle and wife and was declared guilty but insane by the current Chief Justice Martha Koome in 2008.

Justice Koome who was then a High Court judge in Nakuru ordered that he be held at the President’s Pleasure. In 2012, he appealed but Justices Phillip Waki, Samuel Bosire and Joseph Nyamu sealed his fate.

Undeterred, he filed another petition in 2017 asking the court to release him as holding him for an indefinite time was inhuman and degrading punishment.

The petition was not properly drafted and he again, in 2018 filed another one arguing that he had recovered fully.

He produced a medical report from Provincial General Hospital in Rift Valley dated May 27, 2010, which showed he had no history of mental illness nor a family history of mental disorder.

He also has another medical record dated June 21, 2018, from Mathari National Teaching and Referral Hospital stating that he had healed and had no mental problem.

His family told the court that they were willing to take him back.

Justice Ogolla reversed the sentence in 2019 and ordered him to serve 14 years from November 2008 and thereafter six months on probation.

“Indeed, since the petitioner became sane, he has mounted several legal challenges to his incarceration, this being evidence of the extent to which he felt the violation. This Court has the jurisdiction, and the remedy, available for that violation,” ruled Justice Ogola.

Justice Ogola took a cue from Justice David Majanja who in 2018 ruled that Section 166 of the penal code is inconsistent with the Constitution as it gives the President the powers of a judge.

To cure the defect, Justice Majanja reviewed the section and replaced the President with the court.

He ordered that a medical report for the petitioner named S.O.W. should be periodically be produced in court for review. He was of the view that SOW should be at Mathari Hospital for at least 15 years.