Katiba Institute has sued the Director of Public Prosecution (DPP) and the Judiciary for sustaining criminal charges of robbery with violence despite the High Court's declaration that the same is unconstitutional.
In a petition lodged before the Milimani High Court, the Human Rights Lobby Group accuses the DPP and Judiciary of an alleged refusal to revoke charges of robbery with violence and attempted robbery as ordered by the Court eight years ago.
"The Respondents’ wholesale abandonment of their core constitutional duties and utter indifference to all Kenyans’ fundamental rights and freedoms continues. Each day, people are arrested, charged, arraigned, detained, tried, convicted, and sentenced based on these ghost crimes," reads the court papers.
According to Katiba Institute, no individual arrested for the offence of robbery with violence or attempted robbery should be charged, tried or convicted on the same since the provisions were declared unconstitutional in 2016 and the statutes ceased to exist in law on March 15, 2018.
The lobby group now wants over 20,000 suspects arrested, on trial and convicted to death over the non-existing offences to be freed forthwith.
In September 2016, a three-judge bench of the High Court made a finding that the five sections of the Penal Code penalising Robbery with Violence and Attempted Robbery with Violence were unconstitutional in the famous case of Joseph Kaberia Kahinga and 11 others case.
The judgement declared the provisions unconstitutional because they were vague, imprecise, and did not clarify and differentiate ‘the degrees of aggravation of the offence of Robbery and Attempted Robbery with such particularity as enable those accused to adequately answer to the charges and prepare their defences."
The court suspended the invalidity for 18 months on the provisions to allow the Attorney-General, the Kenya Law Reform [Commission] and Parliament to act and appropriately amend the impugned sections of the Penal Code.
The judges, namely Jessie Lessit, Stella Mutuku and Luka Kimaru further ordered the Attorney-General to report to the Court on the efforts to amend the laws.
"The judgment was neither appealed nor stayed. The Attorney-General never reported to the Court, as required, regarding the efforts to amend the Robbery with Violence and Attempted Robbery with Violence statutes. Kahinga became final and binding law at the end of the 18-month suspension - March 15, 2018," Katiba Institute legal manager Chris Kerikering stated in court papers.
He states that following the failure to appeal the decision, address the infirmities in the law and amend the sections of the Penal Code by the Attorney General and all relevant State organs, Kahinga's decision became final and binding law at the end of the 18-month suspension.
"Since March 2018, Robbery with Violence and Attempted Robbery with Violence have ceased to be offences in Kenya. And since only the law can define a crime and a penalty, Robbery with Violence and Attempted Robbery with Violence are not crimes in Kenya. Sections 295, 296(1), 296(2), 297(1) and 297(2) of the Penal Code having ceased validity on March 15 2018," Kerikering says.
The lobby group contends that the state has ignored the judgment in Kahinga and its import adding that any arrest or criminal prosecution for suspects on Robbery with Violence and Attempted Robbery with Violence is unconstitutional and in violation of the fundamental rights and freedoms.
"The National Police Service has continued to arrest the Director of Public Prosecutions to charge, the Judiciary convict, and the Kenya Prison Service to detain people for the offence of Robbery with Violence and Attempted Robbery with Violence," Kerikering states in his affidavit.
Further, the lobby group argues that based on the Judiciary’s own data, over 10,000 people have been charged with robbery with violence and attempted robbery with Violence from July 2018 to March 2023.
"According to the judiciary data over 2,000 people have been convicted during that same period. And some of those have been sentenced to death," Katiba Institute says.
The lobby groups add that failure to follow a valid High Court judgment and continuing to arrest, detain, try, convict, and imprison people based on unconstitutional laws violates fundamental principles of the rule of law, criminal justice, constitutional jurisprudence, and the core duties of the State actors in the criminal justice system.
"We argue this court, if it does not act to address these constitutional violations, there is every reason to believe that the respondents will continue to exercise the authority they have not been given and continue their wholesale violation of the rights of Kenyans," Katiba Institute seeks.
The petitioners also faulted the State for abandoning its constitutional and fundamental legal principles as it has caused serious harm to those accused of robbery with violence and attempted robbery with violence.
"But the damage goes much further. For the victims who have relied on the State to ensure justice is done, the Respondents’ abrogation of their core duties has undermined the victims’ right to justice and dignity and risks re-traumatised them," Katiba Institute says.
The petitioner also seeks declaratory reliefs, injunctive orders as well as damages in favour of all individuals arrested, charged, tried or convicted with Robbery with Violence or attempted robbery with violence from March 15 2018 to date.
Katiba Institute also seeks various declarations including that the Attorney-General, Kenya Commission on Administration of Justice, Kenya Law Reform Commission, the National Council on Administrative Justice, and Parliament, have violated the Constitution by failing to uphold and respect the Constitution and observe, respect, protect, promote the rights guaranteed under the Bill of Rights.
"A declaration that information regarding criminal arrests, charges, trials, convictions and sentences for each crime under the Penal Code and other laws is important information affecting the public that must be published and publicised under Article 35(3) of the Constitution," The petition states.
The lobby group also seeks damages to all suspects arrested and convicted on the using the illegal charges and the victims too.
The case is pending hearing.
