Two ask court to allow rapists, murderers buy their freedom

You may soon have a criminal who violently stole from you, raped or killed buying their freedom.

This is if the High Court agrees a case that seeks changes in the Penal Code to allow convicts of capital offences to have an option of paying fines.

Two murder convicts argue that it is unfair and unconstitutional for a person found guilty of murder or robbery with violence not to be accorded an opportunity to pay for their sins with money.

Section 24 of the Penal Code provides that for capital offences, a person may be sentenced to death and may get varying number of years depending on, among others, mitigating factors and circumstances under which a crime was committed.

However, Section 26 (3) (1) bars substitution of a fine where minimum sentence is provided.

The shortest capital offence sentence in Kenya’s records is of a woman who was jailed for one day after the court found that she had endured an irresponsible, violent and brutal husband.

Other options for punishment in minor offences include imprisonment or community service order, detention, fine, forfeiture, compensation and keeping peace.

Family unit

Erastus Ngula and Paul Odhiambo argue that since the Supreme Court vacated mandatory minimum sentence for murder cases, then those convicted for such crimes should be eligible to pay fines.

“Your humble petitioners contend that Section 26 (3)(i) of the Penal Code which prohibits the substitution of a fine where a minimum sentence is provided, together with any other law that prohibits a fine substitution do not pass the criteria for acceptable limitation to right to equality and freedom from discrimination as envisaged in Article 27(1)(2)(4)(5) of the constitution,” they argue.

The two state that most offenders are parents and breadwinners in their family.

“To protect the society, family unit must be preserved in accordance with Article 45(1) of the constitution. Imposing custodial sentences to offenders without substitution of a fine option is a clear contravention of this provision as it disintegrates most families without giving them alternatives," they claim.

Ngula has been in jail for six years having been sentenced to 20 years imprisonment. He says that he has a masters in Business Administration, which he earned from jail. 

He claims that at the time he was jailed, he had six school-going children and was a businessman. According to him, if he is allowed to pay a fine, he would gladly do so.

Odhiambo was also jailed for 20 years in 2018 for murder. According to his court papers, he wants a chance to transform the society against crime. 

This is the third case in a span of two years seeking for various rights for prisoners. On Friday, the High Court will determine if a prisoner can attend a burial.

Conjugal rights

In a separate case, a woman moved to court seeking orders to allow her to visit her incarcerated husband for conjugal rights.

Rhoda Ogembo says she has been deprived of her right to procreate and have intimacy with her husband just like other women.

"That the first petitioner is in her reproductive years and it is her desire to sire more children, continue being a woman and now seeks for conjugal visits with her spouse in a bid to meet her sexual needs just like any other woman in the society,” argues her lawyer. 

Kenya’s laws are silent on the rights of a prisoner to procreate while serving a sentence or in police custody.

However, countries such as Germany, Russia, Spain, Saudi Arabia, Denmark, Israel, some states in the US and Belgium allow prisoners to spend intimate time with their legal spouses. The duration of the visit varies - some are allowed hours while others can be given several days.

In 1998, the International Criminal Tribunal for Rwanda allowed each prisoner to have three hours of marital visits by their spouse every two months.

Meanwhile, Ogembo sued the AG arguing that although her husband Erastus Odhiambo, who is serving 20 years for murder, retains all his other rights including conjugal rights and human dignity.

Justice Stella Mutuku jailed Odhiambo in July, 2018, for the murder of Linda Wanjiku Irungu, a 27-year-old lawyer who was claimed to be his wife, in Nairobi's Buru Buru Estate.

Although the prosecution had told the court that Odhiambo and Wanjiku were married and had a child, her family maintained they were just friends.

The court was told how the man had gone looking for Wanjiku and found her inside her car preparing to drive out of Waihura Court.

Odhiambo then blocked her car, moved to the driver’s side and pulled Wanjiku out, leaving the vehicle to roll on towards the gate. He is then said to have assaulted Wanjiku before shooting her.

He appealed but justices William Ouko (now a Supreme Court judge), Wanjiru Karanja, and Fatuma Sichale dismissed the case after finding that after shooting Wanjiku, he continued kicking her. They observed that he ought to have been slapped with a harsher sentence but they decided to uphold the 20 years as the state did not seek enhancement.

“The appellant appears to be part of a growing number of young persons who enjoy affluence and think that human life is of no value. The deceased who was not armed was in her motor vehicle. She was pulled out of her moving car and shot at close range. This was a cold-blood murder,” they ruled.

Children's rights

In his appeal, he had faulted Justice Mutuku, arguing that there was not sufficient evidence to support the charges. Odhiambo claimed that the evidence by 13 witnesses was contradictory and that there was no bullet produced in court.

In her court papers, Ogembo argues that she has been left with the sole burden of providing for their children, adding that they have a right to education, shelter, guidance and health.

“Petitioners being teenage girls have lost their self-esteem as they lack a father figure in their most wanting time of transition into womanhood and thus adversely psychologically wounded,” she argues.

She wants the court to find that her right to reproduction has been violated. At the same time, she wants the court to find the State has also breached her children’s rights.

Research findings

Ogembo also wants the court to find that since the State has not provided facilities and opportunities for conjugal visits and how male parents can take care of their children while in prisons, her spouse should get a non-custodial sentence.

A 2018 University of Nairobi research on sexual rights at the Kamiti Maximum Prisons found that a majority of inmates considered a denial of sexual rights unjustified and against their basic human rights.

Ann Mososi, in her research titled Coping with the Denial of Sexual Rights: Prisoners in Kamiti Maximum­ Security Prison Kenya, stated that 91 per cent of the prisoners who responded to her questions were in support of the introduction of conjugal visits.

"Denial of sex causes frustration, which boils over in violent ways. Allowing conjugal visits will help in rehabilitation and learning how to cope with prison life. It improves behaviours of prisoners."