The High Court in Garissa has released a sexual assault convict after making a special finding that he was guilty but insane.
Garissa High Court Judge Justice John Nyabuto noted that Kenyan courts have considered cases involving people found guilty but insane. However, courts have not reached a common position on how to handle such cases.
High Court releases sexual assault convict
While releasing the convict, Justice Nyabuto said most previous decisions support discharge after a medical expert confirms that an accused person has recovered.
“However, the majority of the decisions tend to lean towards discharge upon certification of the accused by a medical expert that he is recovered and therefore not a danger to himself nor society,” the judge noted.
The judge referred to the decision in Hassan Hussein Yussuf v Republic, where Waweru Kiarie declared Section 166 of the Criminal Procedure Code unconstitutional.
The decision also held that the President has no role in the judicial process. According to Justice Nyabuto, the court considered discharge appropriate in such circumstances.
Court declares detention of insane convicts unconstitutional
Justice Nyabuto also referred to a decision by the Nairobi High Court concerning the interpretation of the Constitution under Article 165(3)(d).
In Kimaru & 17 others v Attorney General & another; Kenya National Human Rights and Equality Commission (Interested Party), Justice Mrima declared several provisions of the Criminal Procedure Code unconstitutional.
The provisions included sections 162(4) and (5), 166(2) to (7), and 167(1)(a) and (b), (2), (3) and (4).
The court found that the special finding of “guilty but insane” could result in the convicted person being held at the pleasure of the President.
According to the court, such detention interferes with judicial independence and the separation of powers.
Sexual assault convict underwent mental treatment
The convict in the current case faced a sexual assault charge involving a minor before a magistrate’s court.
The court ordered a mental assessment after concerns about his mental condition emerged. Medical experts found him unfit to stand trial because of mental infirmity.
The court subsequently referred him to Mathari Mental Hospital for treatment.
After doctors certified him fit to stand trial, the accused returned to court and pleaded not guilty.
The court then conducted a full trial. At the conclusion of the proceedings, it found him guilty and entered a special finding of “guilty but insane.”
Trial court sent convict to Mathari Mental Hospital
The trial magistrate ordered the convict to undergo treatment and rehabilitation at Mathari Mental Hospital for a period not exceeding six years.
The decision prompted him to file an appeal before the High Court.
Justice Nyabuto, however, noted that Mathari Mental Hospital serves as a treatment facility rather than a detention centre for convicted persons.
“Mathari hospital is not a place for detention of convicts but a treatment facility which upon recovery refers the convict back to court for necessary action,” Justice Nyabuto said.
The judge added that the hospital had completed its role after doctors certified the convict fit to return to society.
“It is the obligation of the society to accommodate people suffering from mental infirmity after recovery,” he added.
Court orders unconditional release
In his final determination, Justice Nyabuto ordered the unconditional discharge of the convict.
