Many Kenyans were on Tuesday astounded after learning that the main suspect in the killing of four family members and a farmhand in Kiambu County is not fit to stand trial in the murder case.
This is after the Kiambu Chief Magistrate Patricia Gichohi received an age and mental assessment that revealed that Lawrence Warunge is mentally ill, therefore, not fit to stand trial for the gruesome murder of his father, mother, two siblings, and farmhand.
Nonetheless, the court ordered the state to ensure that Warunge is detained for a further 30 days during which he will undergo treatment for mental disease in the hope that he can be found fit for trial.
But what happens if Warunge, who confessed to the killings, is found to be unfit to stand trial or is found to have committed the crimes while mentally ill? What does the Kenyan law say would happen to him?
Under Section 12 of the Penal Code, an accused person cannot be held criminally responsible for his acts if it is established that he did not know what he was doing or that he was incapable of understanding that he ought not to do the act.
"A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is through any disease affecting his mind incapable of understanding what he is doing, or of knowing that he ought not to do the act or make the omission; but a person may be criminally responsible for an act or omission, although his mind is affected by disease, if such disease does not in fact produce upon his mind one or other of the effects above mentioned in reference to that act or omission," states Section 12 of the Penal Code.
This law hinges on two critical principles: one, that the person doing the act or committing the omission does not know what he is doing due to mental illness, and two, that the person doing the act or committing the Commission does not know that he ought not to do the act or commit the omission due to mental disease.
"In essence, therefore, the act may be committed but the accused may not have known that he ought not to have committed the act. This presupposes that due to his mental illness, the accused’s ignorance of the legal position that the act was unlawful is protected by the law," held Justices A. Mabeya and S.J Chitembwe in 2017 in the appeal of H.M versus the Republic at the Meru High Court. In this case, the appellant was convicted of rape but was found to have been mentally ill when he committed the offense.
If an accused is guilty but insane, they can be detained at the President's pleasure.
There are two instances where a convict is detained at the President’s pleasure: Under Section 25(2) of the Penal Code and Section 167 of the Criminal Procedure Code.
Under Section 25(2) of the Penal Code, if one is sentenced to death but is found to have been under the age of 18 years when he /she committed the offense, such a person shall be detained at the President’s pleasure.
Under Section 167 of the Criminal Procedure Code, if the accused, though not insane, cannot be made to understand the proceedings, the court can convict based on the evidence and order the accused to be detained at the President's pleasure.
However, such an order by a subordinate court shall be subject to confirmation by the High Court.
"In cases tried by the High Court, the Court shall try the case and at the close thereof shall either acquit the accused person or if satisfied that the evidence would justify a conviction, shall order that the accused person be detained during the President’s pleasure," the Criminal Procedure Code states.
There are instances when a High Court can also set aside a sentence to be served at the President's pleasure.
In the Meru case cited above, the judges set aside the sentence imposed by the trial court under Section 167 of the Criminal Procedure Code and in its place substitute it with the period already served.
The judges set the appellant free unless otherwise held in spite of him having been convicted of rape but found insane.
"The law provides that one who is guilty but insane is to be detained at the President’s pleasure just like one who is sentenced to death but is under the age of 18 years.
The lengthy incarceration of such convicts erodes their human dignity provided under Article 28 of the Constitution. The appellant did not know that he ought not to have committed the act. He was mentally sick and the law acknowledges that mental status.
Having the appellant detained for a period which might be longer than the minimum sentence under Section 7 of the Sexual Offences Act is unlawful.
The sentence is now indefinite and all what the appellant has to do is to entertain the faint hope that the Presidential pleasure will be exercised before the expiry of 10 years.
One serving such a sentence cannot be held to be serving a proper sentence. The sentence is indefinite. It can be more or less than 10 years prescribed period. That situation erodes the appellant’s dignity," the judges in Meru High Court ruled.
Those serving sentences at the President's pleasure can be pardoned when the President exercises his power of mercy in accordance with the advice of the Advisory Committee.
The President can grant a free or conditional pardon, postpone the carrying out of the punishment indefinitely or for a specified period.
According to Article 133 of the Constitution, the President can also substitute punishment for a less severe one or remit all or part of the punishment.
However, the President only acts based on advice from the Advisory Committee that comprises the Attorney-General, Cabinet Secretary for correctional services (Interior), at least five other members as prescribed by an Act of Parliament, none of whom may be a State officer or in public service.
A person ordered to be detained during the President’s pleasure shall be liable to be detained in such place and under such conditions as the President may from time to time by order direct, and whilst so detained shall be deemed to be in lawful custody. The convict can be held in prison or hospitals for the mentally ill.
"The President may at any time of his own motion, or after receiving a report from any person or persons thereunto empowered by him, order that a person detained as provided in subsection (2) be discharged or otherwise dealt with, subject to such conditions as to the person remaining under supervision in any place or by any person, and such other conditions for ensuring the welfare of the detained person and the public, as the President thinks fit," states Section 167 of the Criminal Procedure Code.