Katiba Institute has filed a petition challenging the continued use of laws criminalizing robbery with violence and attempted robbery with violence.
The Human Rights lobby filed a case at the Milimani Law Court accusing the Directorate of Public Prosecutions (DPP) and the judiciary of refusing to obey the court’s decision declaring the two charges unconstitutional.
“We did so the laws upon which numerous convictions were based were declared unconstitutional by the High Court over five years ago.
The High Court had given the Attorney-General 18 months to collaborate with Parliament and other State organs to amend these laws,” reads a press release by Katiba Institute.
At the same time, the Institute accused the State of failing to take any corrective action and continued to enforce the laws even after the court’s judgment became final and binding in March 2018.
In the petition, Katiba Institute explained that individuals arrested for the offence or robbery with violence or attempted robbery should be charged, tried or convicted since the provisions ceased to exist in 2018.
Release Prisoners-Katiba Institute
Katiba Institute wants the arrested or convicted for the two provisions to be released.
The lobby group said the Judiciary’s database showed that over 10,000 people had been charged with the two offences from July 2018 to March 2023.
“Due to the State’s non-compliance with the judgment, more than ten thousand people have been convicted of offences that no longer exist under Kenyan law,” said the Institute.
“According to the judiciary data over 2,000 people have been convicted during the same time period. And some of those have been sentenced to death,” added KI.
Again, the lobby group said victims who cooperated with the State in securing these convictions must accept that their efforts were in vain, contributing unwittingly to a constitutional violation.
KI states “Anticipating debate on this petition, some may argue that supporting it aids criminals, implying they should not enjoy the same constitutional protection as others. Contrary to this perspective, the Constitution safeguards the rights of all individuals, regardless of the nature of the alleged offence.”
Katiba’s lawyer Eileen Imbosa said the court in 2016 declared sections of Penal Code penalizing robbery with violence and attempted robbery with violence as unconstitutional as they were vague and did not differentiate the degree of aggravation of the offence.
The three-judge bench said the sections were imprecise and made it impossible for those accused of the two offences to adequately answer the charges and prepare their defences.
The judges namely Justices Jessie Lesiit, Luka Kimaru and Stella Mutuku ordered the Attorney General (AG) to report to the court on efforts to amend the laws.
However, the AG never appealed the judgement, and no amendments were made.
Therefore, KI argued that the court’s decision became final in March 2018 since the government (AG) failed to appeal the decision or amend the sections of the penal code as directed in 2016.
“”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,” said KI.
Plea to Kenyans
It urged Kenyans not to overlook human rights violations simply because the victims may be considered disreputable.
“Instead, the focus should be on holding the State accountable for its failure to implement necessary criminal justice reforms while also addressing the broader issue of the State’s consistent non-compliance with court judgments,” added the Institute.
The Institute explained that any arrest or criminal prosecution for suspects on the two offences is unconstitutional and in violation of the fundamental rights and freedoms.