National Coroners Service Act yet to be implemented three years after enactment

The death in prison of Tanzanian terrorist Rashid Charles Mberesero last Sunday will be investigated by the police to determine how and why he died.

Reports indicate the convict, who was serving a life sentence for his role in the Garissa University attack that left 148 people dead in 2015, might have hanged himself in his cell at the Kamiti Maximum Security Prison.

The Government Pathologist will perform an autopsy to confirm whether the prisoner took his own life. In the event that suicide is ruled out, a criminal probe should, logically, proceed to accord and determine culpability.

If the National Coroners Service Act, 2017, had been in operation, Rashid’s death would have been investigated by a coroner-general.

But implementation of the Act has been delayed for over three years by lack of political goodwill and a legal bottleneck over which cabinet secretary should name the coroner-general and determine the terms of the Coroners' Service.

Reportable deaths under Part Four of the Act include those arising from “violence, misadventure, negligence, misconduct, malpractice, or by unfair means including during or following pregnancy, in circumstances that can be deemed to be sudden and unexpected, or out of a disease for which a patient was not properly treated.”

The coroner-general is also mandated to investigate “all deaths arising in police, military and other lawful custody.” In the case of reportable deaths in police custody, the coroner-general will hand over a report of findings to the Independent Policing Oversight Authority for action.

The Act transferred the investigation of unnatural and violent deaths, including those in police custody and prison, from the police to the coroner-general, an independent office whose occupant is competitively appointed by the cabinet secretary responsible for matters relating to justice upon recommendation by the Public Service Commission.

This appointment and creation of the Coroners' Service has not happened in part because Kenya has not had a cabinet secretary in charge of justice after the High Court ruled in January 23, 2017, that the Attorney General, who had acted in that role since 2013 on the basis of Executive Order 2 of 2013, had done so illegally and unconstitutionally.

Exercise powers

The High Court held that although the AG is a member of the Cabinet, he is not a cabinet secretary and cannot therefore purport to exercise those powers without the authority of a statute, parliamentary vetting, appointment and oath required of cabinet secretaries under the Constitution.

The ruling, which followed a petition by a private citizen, dealt a blow to the implementation of the law. Significantly, the State did not appeal the judgment and six months later the National Assembly passed the Act on June 21. The President signed it into law and a commencement date was set for July 7.

The National Assembly has also not adopted a statute to address the anomaly.

The State is now attempting to cure the legal obstacles engendered by this poor legal drafting and oversight through the Constitution of Kenya (Amendment) Bill, 2020, that proposes to amend Article 156 of 2010 to enable the Attorney General sit in Cabinet and perform the functions of a cabinet secretary.

This clarity would enable the AG to lawfully create the Coroners' Service and assume other functions without competition from other State offices.

The National Coroners Service Act was enacted after years of agitation by rights groups to address the rising cases of unresolved deaths. Prior to its enactment, the Bill had been in the National Assembly since its drafting by the Attorney General and Kenya Law Reform Commission in 2010.

The Act creates a mechanism for mandatory reporting of designated deaths and complements police investigation with forensic medical science. It assists courts to reach a reliable finding in such matters and also aids the government to formulate policy based on forensic studies to prevent similar deaths from happening.

Additionally, the Act allows and mandates the Coroner-General or his officers to participate in judicial inquests. The police have traditionally been responsible for these investigations and rely on the services of the Government Pathologist and Government Chemist to harvest forensic evidence.

The law allows the admission of this expert evidence in court to enable judicial officers ascertain certain facts. But these investigation agencies have been accused in the past of manipulating and subverting death inquests and post-mortem examinations in cases where they were suspected of being complicit or covering up for the State.

The police, military and prison officers are also not expected to investigate deaths of persons in their custody.

In spite of inherent weaknesses, rights groups consider the Act to be a good start towards ending extrajudicial killings and unsolved deaths.