Sept. 29
PAKISTAN:
2 sentenced to death in child kidnap, murder case
An antiterrorism court on Saturday awarded death sentence to 2 men for
kidnapping and killing a child over non-payment of ransom.
4 accused — Abdul Ghaffar Brohi, Abdullah Magsi, Ali Magsi alias Ali Dino and
Zahid Hussain Gopang — were charged with kidnapping 4 1/2-year-old Ammar
Hussain Jatoi within the remit of the Waleed police station, Larkana in 2012.
On Saturday, the ATC-II judge, who conducted the trial in the judicial complex
inside the central prison, pronounced his verdict reserved after recording
evidence and final arguments.
The ATC hands down life imprisonment to 2 more accused
The judge noted that the prosecution successfully proved the allegations of
kidnapping for ransom against the accused Abdul Ghaffar Brohi and Abdullah
Magsi and handed down capital punishment to them.
The judge awarded life imprisonment to accused Ali Magsi and Zahid Hussain and
also ordered them to pay Rs500,000 each to the legal heirs of the victim as
compensation.
The judge further sentenced them to four-year imprisonment for possessing
illicit arms and ammunition. However, all the sentences shall run concurrently.
According to the prosecution, the accused abducted the child, a student of
nursery class, when he was playing outside his house in the Sheikh Zayed Colony
on March 9, 2012 and drove him away in a car.
Later, they demanded a ransom of Rs5 million for his safe release. But, his
body was found from an abandoned house as the family failed to pay the ransom,
the prosecution added. The accused were arrested and led the police to the
recovery of the child’s body.
Trial transferred due to political interference
On April 25, 2012 the Sindh High Court (SHC) had ordered transfer of the case
from ATC Larkana to an ATC in Karachi after complainant Asfar Hussain Jatoi
moved an application alleging that then ministers belonging to the Pakistan
Peoples Party were influencing the investigation to favour the accused persons.
“All the prosecution witnesses (were) examined; (they) supported that on Feb
13, 2012 the dead body of the child was recovered at the pointation of accused
persons, mashirnama was prepared as per direction of Assistant Superintendent
of Police, but nothing was brought on record,” the judge wrote in the order.
He added: “In such circumstances the case was transferred to Karachi due to
involvement of three Ministers of political party.”
The verdict added that “the mashirnama of the (victim’s) body was prepared, but
it was destroyed on political grounds and that record is available in his
report under the Section 168 of the Criminal Procedure Code”.
Earlier, special public prosecutor Nazeer Ahmed Bhangwar submitted that from
the very beginning of the investigation the police were favouring the accused
persons and had tried to hide the facts.
He added that two brothers-in-law of the complainant had seen the four accused
persons with arms in the car, as they were taking away the child and had
informed the complainant about the incident.
The prosecutor argued that accused Abdullah Magsi had made a phone call to the
complainant demanding Rs5m ransom for the safe release of his kidnapped son,
but agreed on Rs3.5m. While the complainant was arranging the money the same
accused called him the next day and asked him to pick the body of his kidnapped
son from a house in Yar Mohammad Colony on March 13, 2013, he added.
He contended that the accused persons were arrested on March 13, 2013 and on
their information the police had recovered the body, but the police showed
their arrest on March 15 to create doubts and favour the accused. He argued
that the evidence fully corroborated the prosecution’s case and pleaded to the
court to convict them in accordance with the law.
Advocate Altaf Hussain for the complainant said that the accused persons were
influential and politically involved, therefore, under their influence the
police did not investigate the case honestly. He added that the complainant had
to move an application for re-investigation, which was conducted after great
difficulty.
On the other hand, defence counsel Wazeer Hussain Khoso and Safdar Ali Bhutto
argued that their clients were innocent, but the police framed them in a false
and fabricated case with mala fide intentions.
5 cases under Sections 302 (premeditated murder), 365-A (kidnapping for
ransom), 201 (causing disappearance of evidence of offence, or giving false
information to screen offenders) and 34 (common intention) of the Pakistan
Penal Code read with Section 7 (acts of terrorism) of the Anti-Terrorism Act,
1997 and Section 13-E of the Arms Ordinance were registered at the Waleed
police station.
(source: dawn.com)
**********************
7-judge bench to decide span of life sentence
A 7-judge bench of the Supreme Court (SC) – led by Chief Justice of Pakistan
(CJP) Asif Saeed Khosa – will, on October 2, decide the duration of the span of
life imprisonment in Pakistan.
The three-judge bench, led by CJP Khosa, while hearing a matter on July 29
questioned whether life imprisonment meant imprisonment of a convict for his
remaining biological life or anything shorter than that – and if so, whether
different sentences of imprisonment for life passed in the same case or
different cases were to run concurrently or consecutively.
“The question has appeared to us to be a question of immense public importance
affecting a larger number of cases in the country,” said CJP Khosa.
The court has also issued a notice to the attorney general for Pakistan (AGP),
advocate generals and prosecutor generals to assist in the matter.
Justice Isa files plea for formation of full court bench
Members of the bench, hailing from 3 provinces, include Justice Manzoor Ahmad
Malik, Justice Sardar Tariq Masood, Justice Faisal Arab, Justice Mazhar Alam
Khan Miankhel, Justice Sajjad Ali Shah and Justice Qazi Muhammad Amin Ahmed.
All members have expertise in criminal law.
According to sources, the Pakistan Bar Council (PBC) is also considering
becoming a party in this case.
A PBC executive member said the bar council wants to assist the SC in this
matter as lawyers are not in favour of any interpretation, suggesting that life
imprisonment means imprisonment of a convict for his remaining biological life.
Likewise, a convict Khadija Shah, a British national, has also filed an
application through his counsel Raheel Kamran Sheikh to become party in the
case.
Talking to The Express Tribune, Sheikh said any interpretation of the sentence
of “imprisonment for life” as incarceration for the remaining biological life
of a convict would be unconstitutional and violative of the fundamental rights
enshrined in Articles 9, 14 and 25, besides being in contrast with the judicial
history on the subject.
Currently, the sentence of life imprisonment corresponds to a maximum
imprisonment of 25 years, and a minimum of 15 years (per Rule 140 of the
Pakistan Prison Rules 1978); after earning remissions as may be extended by the
executive functionaries from time to time but subject to Section 401 CrPC, Rule
216 and Rule 218 of the Pakistan Prison Rules, 1978.
Justice Isa criticises govt’s move of lifting ban on prohibited bore licences
The jail manual also provides for at least a 14-year substantive period for
those sentenced to life imprisonment. Section 57 of the Criminal Procedure Code
stipulates that life imprisonment will be 25 years.
The CJP had hinted at interpreting the ambiguity of the life sentence while
hearing review appeal of a death row convict, Abdul Qayyum. During the hearing,
Justice Khosa had remarked that the current interpretation of life imprisonment
law was flawed. Referring to judicial practice in India, the chief justice
remarked that life sentences in India are given after specifying the period of
imprisonment.
“The span of life imprisonment is regarded as limited to 25 years, while it is
meant to last a lifetime. The court would thoroughly interpret the law at an
appropriate time. Once it happens, convicts will ask for a death sentence
instead of life imprisonment,” CJP Khosa had said during the June hearing.
“In India, they clearly mention the number of years a convict has to stay in
prison,” he added.
In 2012, the Supreme Court of India said that life imprisonment implied a jail
term for the convict’s entire life.
The apex court had also noted that its constitutional bench’s landmark judgment
of 1980 on the criterion for imposing death penalty needed a “fresh look” as
there had been “no uniformity” in following its principles on what constitutes
“the rarest of rare” cases.
“It appears to us there is a misconception that a prisoner serving a life
sentence has an indefeasible right to be released on completion of either 14
years or 20 years imprisonment. The prisoner has no such right,” said judgment
issued by SC of India published in an Indian newspaper.
“A convict undergoing life imprisonment is expected to remain in custody till
the end of his life, subject to any remission granted by the appropriate
government,” a bench of Justices KS Radhakrishnan and Madan B Lokur said.
The bench, however, clarified that under remission, the appropriate government
cannot reduce the period of a sentence less than 14 years for a life convict.
“In the case of a convict undergoing life imprisonment, he will be in custody
for an indeterminate period.”
(source: tribune.com.pk)
**************************
More than life
A life sentence in Pakistan is counted as 14 years. Wajih-ul-Hassan has served
far more than that. In 2002, he was condemned to death in a blasphemy case and
has remained behind bars since then, for 18 years facing not only imprisonment
but also the constant threat of being walked to the gallows. He is now suddenly
free. A three judge bench headed by Justice Sajjad Ali Shah exonerated Wajih
from blasphemy and ordered his release. The court observed there was
insufficient proof that he had written blasphemous letters; it had been alleged
that at the time Wajih was held, letters had been written to a senior lawyer,
Ismail Qureshi. The lawyer had filed a petition before the Federal Shariat
Court, asking it to make death penalty the only punishment for blasphemy. The
lawyers argued that this had angered Wajih.
The details involved handwriting analysis, the question of Wajih’s religion,
the fact that the letters were burnt by the lawyer as he considered them too
sacrilegious and other matters. But what is significant is that a man had so
many years of his life taken away from him on a charge that he had not
committed. There are others in the same situation. Junaid Hafeez, a visiting
lecturer in English at the Bahauddin Zakariya University, has already served 12
years in jail without even the first phase of his case before a trial court
having been completed. He was accused by a student of committing blasphemy.
There are others like Junaid.
To make matters worse, radical television hosts have urged students to capture
on video any teacher who utters blasphemy, presumably so that they can be
arrested and penalised. There are multiple cases of people being jailed for
blasphemy on flimsy grounds, often to settle petty scores or business disputes.
It is also true some have been killed in jail or later when returned to their
villages after being freed. The situation is an extremely grave one. It is
vital the state looks at how it administers the blasphemy law so that innocent
people cannot so easily be victimised. The case of Aasia Bibi made
international headlines recently. Pakistan needs to review the way the
blasphemy law is used in order to spare people so much suffering.
(source: Editorial, thenews.com.pk)
INDIA:
Guru Nanak’s birth anniv: Centre to release 8 Sikh prisoners, commute death
penalty of 1 to life term
8 Sikh prisoners, lodged in different jails across the country in cases
registered against them for offences committed during the militancy period in
Punjab, will be released by the central government on the 550th birth
anniversary of Guru Nanak in November as a humanitarian gesture.
The Union home ministry also announced that through a special remission, the
death sentence of another Sikh prisoner was commuted to life imprisonment.
Recently, the Punjab government had sent a list comprising the names of Lal
Singh, Dilbagh Singh, Saran Singh, all lodged in the high-security Nabha jail,
Hardeep Singh and Baj Singh, lodged in Amritsar central jail, Nand Singh
(Patiala central jail), Subheg Singh (Ludhiana central jail), Gurdeep Singh
Khera (Gulbarga central jail in Karnataka), and Waryam Singh (Bareilly central
jail in UP) for remission.
The list was sent following a meeting between Punjab chief minister Captain
Amarinder Singh and Union home minister Amit Shah on September 3.
State government officials declined to comment whether the death sentence of
Balwant Singh Rajoana, convicted for the assassination of former chief minister
Beant Singh, was commuted to life sentence.
“We are yet to get the final list,” said a senior official.
The Centre took the decision to grant “a special dispensation” to 9 Sikh
prisoners from various jails in the country on the occasion of the birth
anniversary of the founder of Sikhism, a Home Ministry spokesperson said. These
individuals were convicted by various courts in the country, the spokesperson
said.
The decision was taken by the government as a token of goodwill in response to
the long-pending demands of the release of Sikh prisoners articulated by
various sections of the Sikh community.
A communication to this effect was sent on Saturday to the state governments
and union territories concerned for release of the Sikh prisoners.
The 550th birth anniversary of Guru Nanak will be in November.
Also, the government is planning to release more prisoners from jails across
the country under the scheme for special remission to prisoners to commemorate
150th birth anniversary of Mahatma Gandhi.
So far, 1,424 prisoners have been released by states and UTs in 2 phases
(October 2, 2018 and April 6, 2019).
The 3rd phase of release is due on October 2 and action is underway by states
and UTs, the spokesperson said.
(source: Hindustan Times)
********************
Top Court Sets Up Special Benches To Hear Cases Of Death Penalty, Taxes----The
Supreme Court on Saturday set up special benches to deal with cases of death
penalty and tax matters.
The Supreme Court on Saturday set up special benches to deal with cases of
death penalty and tax matters.
An official source said that a bench comprising 3 judges will come into
existence from next month to deal with the matters of capital punishment.
The source also said that 2 courts of 2-judge benches will deal with tax
matters.
4 new Supreme Court judges -- justices Krishna Murari, S Ravindra Bhat, V
Ramasubramanian and Hrishikesh Roy -- took oath of office on September 23,
taking the total strength of judges in the top court to 34.
To reduce the growing backlog of cases, the Supreme Court on September 20 had
made public its decision to provide for sitting of a single-judge bench to hear
appeals of bail and anticipatory bail in cases related to offences entailing
jail term up to 7 years.
According to the rules which have been amended, the single judge would also
hear transfer petitions.
(source: ndtv.com)
EGYPT:
Detention of Sudanese student in Cairo ignites protests in Sudan ---- With
activists highlighting the influence of Sudan's uprising on Egypt, Walid
Hassan's detention is viewed as an attempt by Cairo to peg the ongoing protest
movement on outside interference
News of the arrest of a young Sudanese man in Egypt, accused of participating
in recent protests against Egyptian President Abdel Fattah el-Sisi, ignited
demonstrations in the Sudanese capital Khartoum earlier this week.
Walid Abdulrahman Hassan was one of more than 2,000 people detained by Egyptian
security forces in the past week, and like many others, he stands accused of
participating in protests in Cairo’s Tahrir Square against Sisi’s rule.
Hassan is being accused of participating in a conspiracy against the Egyptian
constitutional system - a charge that can carry the death penalty under the
law, and which Egyptian activists argue is being used to draw attention away
from the legitimate grievances of the protest movement.
Demonstrations first began on 20 September, sparked by whistleblower Mohamed
Ali’s allegations of high-level corruption and misspending of state funds,
while many Egyptians suffer from poverty under stringent austerity measures.
Sudanese pro-democracy protesters have staged protests in residential areas of
Khartoum, while the family of Hassan submitted a petition to the Sudanese
Ministry of Foreign Affairs calling for it to intervene to free the 22-year-old
man.
While Sudanese activists have coalesced in support of Hassan, analysts ponder
how recent developments in Egypt, now witnessing the first significant mass
protest movement since Sisi came to power in 2013, may have been influenced by
Sudan’s own ouster of longtime autocrat Omar al-Bashir earlier this year.
Shock and defiance
Speaking to Middle East Eye, Hassan’s family said they were torn between
sadness and defiance, as they remain determined to bring him back, as well as
hold Egyptian authorities responsible for any harm that might befall him while
in custody.
On Wednesday, Egyptian channel MBC Masr aired a segment in which prominent
Egyptian TV presenter Amr Adib publicly revealed the identity of a number of
foreigners arrested in the past week, and played several videos in which these
individuals, including Hassan, confessed on camera to being involved in the
organisation of the protests.
“I can’t sleep or eat since I saw that video,” Hassan’s mother, Khadiga Abu
al-Zaki, told MEE. “It’s more than painful to see my only son being accused of
such serious crimes when I know that he is innocent.
“This video is staged, and the Egyptian presenter is lying,” she added. “I know
my son well, he made these confessions either under torture or threat.”
According to Hassan’s uncle, Mahy Aldi Abu al-Zaki, the young accounting
student arrived in Egypt for the first time in his life in late August in order
to study German at an institute in Cairo, as universities in Sudan have been
closed since the uprising began in the country last December.
“I was talking to Walid frequently since he moved to Egypt and he has nothing
to do with what is happening in Egypt,” Mahy told MEE. “We were surprised and
shocked when we saw him in that video claiming Walid supports the Muslim
Brotherhood in Egypt… most of the information now circulated about him in the
media are incorrect.”
The Sisi government has tried to dismiss the recent protests in Egypt by
blaming them on foreign intervention and the Muslim Brotherhood - the
organisation of Mohamed Morsi, the first democratically elected Egyptian
president who was ousted in a military coup in 2013.
While emphasising that her son was not involved in events in Egypt, Khadiga
said with pride that her son had a history of activism in his own country -
noting that he was detained by Sudanese forces in September 2013 and in
December 2018 for participating in anti-government demonstrations.
Hassan’s friends and relatives nonetheless vehemently rejected the Egyptian
claims that the young Sudanese man was affiliated to the Muslim Brotherhood,
pointing to his longstanding opposition to Islamist rule in Sudan under Bashir.
“Walid has made many sacrifices in Sudan’s revolution because he is against the
Muslim Brotherhood in Sudan, so how would he supported them in Egypt?" his
friend Mohammed Saleh asked. “For someone to accuse him of supporting the
Egyptian Muslim Brotherhood its unbelievable.”
'Save Walid'
“Despite the pain and sadness, I am proud of him because he is a brave
change-seeker who wants the betterment of his country and struggles for his
future and that of democracy,” Khadiga said.
Hassan’s arrest has prompted thousands of Sudanese pro-democracy protesters to
organise marches and launch a social media campaign “Save Walid”, calling on
Egyptian authorities to free him immediately.
Protests that began on Thursday in some residential areas of Khartoum such as
Haj Youssef, Arkaweet Maamora and Burri quickly spread to outside the Egyptian
embassy in Khartoum.
The Sudanese Professionals Association (SPA), one of the leading organisations
of the Sudanese uprising, has come out to condemn Hassan’s arrest, joining the
family’s calls for the Sudanese transitional government to intervene in the
case and calling the video of Hassan made public on Egyptian television a
“shameful” move that would have consequences.
“We stress here that the era when Sudanese citizens were humiliated inside or
outside their country has gone and will never return,” it assured.
Salah vowed that the Sudanese would continue to support his friend Hassan as
long as he remained imprisoned.
“We will never stop the marches and protests calling for his immediate
release,” he said. “We have told the transitional government: We brought you
into this position through our sacrifices, so at the very least protect us,
preserve our dignity and bring Walid back without further delay.”
Mutual inspiration
With Hassan’s case stirring up emotions in Sudan, a number of Egyptian
activists and analysts have commented on the influence uprisings in both Sudan
and Algeria this year may have had on the nascent movement in Egypt.
'The era when Sudanese citizens were humiliated inside or outside their country
has gone and will never return' - Statement by the Sudanese Professionals
Association
“Nations are always learning the lessons of liberation from each other,”
Egyptian activist Essam Shaaban told MEE.
“Youth in the entire Middle East have been inspired by the social movements in
Europe, and now Egyptians are also looking to the liberation movements in their
region and how these revolutions have succeeded in the battles for dignity and
democracy.”
Shaaban nonetheless highlighted that “there are many other domestic factors in
Egypt that will lead to the expansion of protests such as the political and
economic crisis in addition to the questions of justice, corruption, et
cetera”.
For his part, Egyptian political analyst Khalid Youssef said Egyptians had
always been affected by the goings on in neighbouring nations.
“Egyptian youth were strongly affected by the revolution in Tunisia in 2011,
and that led to the spread of the Arab Spring. So it’s very probable now that
the Sudanese revolution is inspiring the Egyptian youth” he explained.
Efforts by Egyptian authorities to block out information on the uprisings in
Sudan and Algeria from reaching ordinary citizens has been interpreted by some
as an indication that the Cairo government is well aware of the potential
impact such news might have on the Egyptian population.
The influence has seemingly gone both ways, as Sudanese and Algerian protesters
have been known to chant slogans vowing not to let their respective militaries
derail their movements like in Egypt.
“Egyptian pro-democracy protesters have closely monitored the developments of
the revolution in Sudan and they were very keen to send advice to Sudanese
revolutionaries not to trust the military and repeat Egypt’s experience,”
Youssef said. “This means they gave a lot to the revolutions of Sudan and
Algeria.”
(source: Middle East Eye)
*********************
Outrage after Egyptian woman tortures granddaughter to death----Girl’s leg had
already been amputated because of the inflicted torture
The death of a village child after torture by her grandmother has sparked
outrage in Egypt and put in focus domestic violence against children in the
country.
Jana Mohammad Samir, a 5-year-girl, died on Saturday at a hospital in the Nile
Delta province of Mansura days after she had been brought there with severe
burns.
Jana’s parents divorced about 4 years ago.
She and her older sister Amani, now aged 6, moved along with their blind mother
to live at their grandmom’s house under a court ruling in a custody lawsuit.
3 days before her death, Jana had her leg amputated due to wounds allegedly
caused by the grandma’s torture.
Her aunt claimed in police investigations that Jana told her that the
grandmother had burnt her around the genitalia in order to conceal traces of a
sexual assault by her maternal uncle.
The 41-year-old grandma, now in police custody, denied the allegations, but
could not explain the cause of the fatal wounds sustained by the child.
Relatives said the woman used to beat her up over involuntary urination.
Thousands attend funeral
Thousands of angry mourners attended Jana’s funeral on Saturday at her Delta
village of Busat Karim.
Some of them chanted: “We want Jana’s right and the execution of the grandma.”
The child’s tragic death riveted attention of several night-time TV stations
and drew comments from some celebrities.
“Jana died after she had been tortured by a close relative,” said famous
actress Sherine Reda. “But how many more Jana are there and we know nothing on
them?”Sherine added in a tweet.
She urged the public to report to authorities about suspected torturers of
children.
The state National Council for Childhood and Motherhood, meanwhile, demanded
the death penalty for culprits in Jana’s death, describing it as a premeditated
murder.
“The council is following up investigations and procedures with the public
prosecution,” the agency’s chairwoman Azza Ashmawy said in a statement.
The grandma faces life imprisonment or even death if she is convicted of deadly
torture, according to legal experts.
Ashmawy said the council is acting to provide protecting for Jana’s older
sister, Amani, who was reportedly subjected to torture by her grandma too.
In recent months, several parents, mainly fathers, were convicted in Egypt of
killing their children due to family disputes or under drug influence.
(source: gulfnews.com)
IRAN----execution
Man Executed in Isfahan
A man was hanged at Isfahan Central Prison for murder charges Thursday.
On the morning of Thursday, September 26, a man was hanged at Isfahan Central
Prison for murder charges, Islamic Republic News Agency reported.
According to the Head of Isfahan’s Judiciary, Mohammadreza Habibi, the prisoner
was sentenced to death for murdering a truck driver during a robbery.
Out of the 110 people who were executed in the first half of 2019, 83 were
sentenced to qisas (retribution in-kind) for murder.
(source: Iran Human Rights)
KENYA:
Why murder and robbery convicts may be set free
The impeccable tie, knotted on a white shirt was hugging the neck which had
just escaped the hangman’s noose.
It was tucked inside a grey suit and hanging on the lanky shoulders of the
bespectacled man with a haunted look.
And the gold-coloured pen he placed on top of a diary completed the picture of
a ‘makeshift’ advocate on a mission.
By way of introduction, the suit wearer, Aloise Onyango Odhiambo blurted out
that he was a convicted robber, just out of Kamiti Prison. He was let out
recently after spending 16 years in a cell, waiting to be hanged.
But as he strutted in our newsroom this week, he did so like a man in a hurry
and with a purpose. Time is out of joint for him, and he ordered his steps as
the man cursed to set it right. For almost two decades, Odhiambo has petitioned
and appealed to have his life back after he was condemned to die for violently
robbing passengers in a Nairobi matatu.
He owes his freedom to 2 benefactors who are still locked up in Kamiti. And now
the the self-taught paralegal is on a mission to assist death row convicts
access justice.
In 2017, when 2 Kamiti inmates challenged the mandatory death sentence handed
to capital offenders, they were pleasantly shocked when the Supreme Court ruled
that the High Court hears the case again for sentencing.
2 years later, Francis Kariuko Muruatetu and Wilson Thirimbu who are now
celebrated as heroes by convicted murderers and armed robbers in all the 38
prisons across the country are still waiting to be re-sentenced by the High
Court in Nairobi.
They had no idea they were opening the prison cell doors to release some of the
country’s most dreaded murderers and violent robbers.
Muruatetu and Thirimbu are still cooling their heels at the same drab cells at
Kamiti prison’s block for the condemned where they have been from the day they
were convicted, together with other relatives and suspects, for the gruesome
murder of Lawrence Githinji Wangondu in February 2000.
For weeks, we have been investigating how this came to be. Our investigations
have revealed that despite going to the High Court for more than 20 times for
re-sentencing as was ordered by the Supreme Court on December 13, 2017, they
are yet to get justice. “The file could not be traced at the High Court. They
have been languishing in Kamiti Maximum Security Prison because their original
file has gone missing,” says the ex-convict, Aloise Odhiambo.
The 2 made history when their petition at Supreme Court, challenging the
constitutionality of the clause that provides that a magistrate trying suspects
in robbery with violence or murder cases to face mandatory death sentence, was
allowed.
Denied a fair trial
In their unanimous verdict, Supreme Court judges, Chief Justice David Maraga,
Philemon Mwilu, JB Ojwang, Smokin Wanjala, Njoki Ndung’u and Isaac Lenaola
declared that although death penalty was not unconstitutional, the Penal Code
providing mandatory death sentence was a violation of the law.
“We find that both petitioners are deserving of a remedy as they were denied a
fair trial. We have looked at comparative case law to give us guidance as to
how this should be done.”
The court caused ripples in the prisons when it pronounced: “The mandatory
nature of the death sentence as provided for under Section 204 of the Penal
Code is hereby declared unconstitutional. For the avoidance of doubt, this
order does not disturb the validity of the death sentence as contemplated under
Article 26(3) of the Constitution.”
The court also ruled that Muruatetu and Thirimbu be taken back to the High
Court for rehearing on sentencing only, on priority basis and in conformity
with the judgment.
In the landmark judgement, the court further directed that Parliament and
Senate enact laws or regulations to give effect to the judgment on the
mandatory nature of the death sentence and the parameters of what ought to
constitute life imprisonment.
Further, the Attorney General was given 12 months to give a progress report to
the court on the issue of re-sentencing. The Sunday Standard investigations
found that the problem of the missing files was not only confined to the
Muruatetu and Thirimbu case. Thousands of other convicts do not know their fate
as their files can not be traced.
Kiambu Law Courts, sources indicated has been hit by a major hitch because
re-sentencing cases have not been heard, subjecting the affected death-row
convicts to uncertainty.
We obtained a list of 37 cases whose files can not be traced at the Kiambu Law
Courts where convicts claimed they had been approached to offer facilitation
fee for their retrieval from the archives.
When the Sunday Standard raised the issue of the missing files with Anne Amadi,
the Chief Registrar of the Judiciary, she explained that it has not been
possible to carry out an audit on all the cases that needed re-sentencing.
“I suppose it is the issue of old cases. Some of these cases that need
re-sentencing are more than 20 years old. It takes some time to go through the
archives to get the files. This has posed a challenge to some courts,” Amadi
added.
She however ruled out that some files could have been destroyed as happens to
old cases whose owners have exhausted all avenues of appeals or the cases had
had been closed.
However, Maryann Njau-Kimani, the Senior Deputy Solicitor General who chaired
the taskforce on the implementation of Supreme Court’s death penalty decision,
explained that a comprehensive report was tabled to the Chief Justice on
December 13 last year.
According to Njau-Kimani, as at February this year, there were 4,819 death row
convicts out of whom only 1457 had had their cases re-heard for sentencing
while 3360 are yet to be re-sentenced.
According to the statistics released by Njau-Kimani, Kamiti Maximum Security
Prison has the highest number of death row inmates at 1117, followed by
Naivasha (889), Kisumu (444), Shimo La Tewa (355), Kibos (350), Nyeri (302) and
Manyani (323).
Dashed the hopes
Interestingly, although Kamiti has the highest number of capital offences
convicts, only 4 out of 1117 have have had their cases re-heard by February.
Eldoret has tackled only 4 out of 87 while Naivasha had handled 507, leaving a
balance of 382.
Although the death row convicts are optimistic that once they are re-sentenced
they may walk to freedom, not all appellants have secured their freedom.
On July 4 this year, High Court judge Florence Muchemi dashed the hopes of two
convicted murderers who had appeared before her for re-sentencing in a petition
filed in Embu.
Patricio Njiru Kirangi and Jonathan Njeru Mutunga had originally pleaded with
the court that their sentenced be reduced to the time served because they had
already spent 19 years in jail.
The State was however opposed to the release of the 2 who had hacked a woman,
thrown her body parts into a pit latrine simply because they had failed to find
her husband who they were pursuing over a land dispute.
Muchemi’s verdict read: “I have carefully perused through the petitions and
find nothing in mitigation. Ending the life of a human being should not be
taken lightly for it adversely affects families including innocent children who
are deprived of parental love and support.”
In another case however, High Court judge Luka Kimaru freed Peter Matiku Muhiru
who had been in prison for 16 years for violently robbing a Naivasha
businessman, Peter Mburu Gikonyo of shs2,750 on October 3, 2001.
In Garissa, Aden Shariff Abdi and Arte Abdi Wito who violently robbed and
killed businessman Haji Omar Ibrahim have been given a new lease of life.
High Court judge, Charles Kariuki re-heard their case and determined that at
the time, Wito who was armed with a gun was 18 years and was impressionable
while his co-accused, though aged 25, did not have a dangerous weapon. Kariuki
referred the two to the magistrates court for re-sentencing.
(source: standardmedia.co.ke)
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