Report from Kenya: Constitutional Court considers the legitimacy of the trial of Jesus

The Constitutional Court of Kenya has come under international spotlight after a petition challenging the constitutionality of the trial of Jesus Christ was thrown on its laps late in August, 2007. This unique petition and number of decisions through which Kenya’s highest court, the Court of Appeal, has broken new jurisprudential ground, comprise this second installment of Kenya’s country report.

Historic Court Petition that challenges the Trial of Jesus
Friends of Jesus v Tiberius, Emperor of Rome; Pontius Pilate; et al
Republic of Kenya Constitutional Petition No. 965 of 2007

A society of Christians has filed an unprecedented case in Kenya seeking a constitutional interpretation of the trial, sentencing, punishment and death of Jesus Christ. On 29th August, 2007, the Friends of Jesus, acting through Mr. Dola Indidis, a Christian, a lawyer and also the spokesman for the Kenyan Judiciary, filed a petition in the Constitutional Court in Nairobi against the States of Italy and Israel and a host of characters featured in biblical accounts of the events leading to Jesus’ crucifixion, i.e. the Emperor of Rome at the time, Tiberius; the Governor of Judea, Pontius Pilate; the Jewish Chief Priest; Jewish Elders; Jewish Teachers of the Law and King Herod. The Kenya Civil Liberties Union has joined the proceedings as amicus curiae (friend of the court).

The Petitioners are challenging the mode of questioning, trial, sentencing and punishment of Jesus and are asking the court for a declaration that the proceedings before the Roman Courts between 42BC and 37AD were a nullity in law because “they did not conform to the rule at the material time.”

In a sworn affidavit, Mr. Indidis describes his fellowship of the Friends of Jesus as having bestowed upon itself “the sole responsibility and duty of preserving and protecting the image, authority, teachings and dignity” of Jesus Christ “according to the teachings of the New Testament.” The petition states that the purpose of the proceedings is to obtain a resolution of a pertinent issue for Christendom and Jews, i.e. addressing the wrongs that were meted against Jesus, particularly the legitimacy of the law under which he was tried and punished and the manner in which that law was applied.

The states of Italy and Israel have been named in the suit because, as the Petition states, upon the attainment of independence, the states incorporated the antecedent laws of the Roman Empire and the laws in force at the time of the Crucifixion.

If the petition satisfies the threshold procedural and substantive requirements for a constitutional reference, it will be referred to Mr. Justice Evan Gicheru, the Chief Justice, on the question of appointing a bench of at least three High Court judges to hear it.

Sexual assault leading to death – remoteness of cause of death on a charge of murder
Dominic Maina Wanjiru v Republic [2007] eKLR

Earlier in the year, in February, the Court of Appeal dealt with the tragic case of a 7 year old girl who died while undergoing treatment for injuries suffered in a sexual assault. On 7th October, 2000, young Rachael Maruhi had returned to her home crying and bleeding from her private parts after a brief disappearance. She told both her grandmother and her mother that she had been defiled by the appellant, who was their neighbour.

When Rachael was taken to hospital, she underwent emergency surgery to stop her bleeding and to repair her injuries. However, because she had not been starved of food for about six hours, which is an established medical practice for persons about to undergo surgery, when she became awake, she regurgitated her stomach contents and developed cardiac arrest due to the clogging of her lungs with carbon dioxide. She died on the surgery table from asphyxiation due to lung collapse.

In this appeal, the appellant challenged the decision of the High Court convicting him for the murder of Rachael and sentencing him to death. The Court of Appeal considered section 213(a) of the Penal Code (Chapter 63 of the Laws of Kenya) against the all-important question: what was the immediate and primary cause of the death of Rachael and who had caused it?

Appellate Judges P.K. Tunoi, E.O. O’Kubasu & E.M. Githinji observed that the significant cause of Rachael’s death was her defilement or sexual assault. Her dying declaration and other circumstantial evidence raised the inference that the assault had been inflicted by the appellant. The Court of Appeal therefore dismissed the appeal.

The right of an arrested person to be brought to court within a reasonable time
Gerald Macharia Githuku v Republic [2007] eKLR

Under the Constitution of Kenya, where a person is arrested upon reasonable suspicion of having committed a criminal offence, then, if he is not released, he is required to be brought before a court as soon as is reasonably practicable. Where he is not brought before a court within twenty- four hours of his arrest, or within fourteen days of his arrest where it relates to an offence punishable by death, the burden of proving that he was brought to court as soon as was reasonably practicable usually rests upon the prosecution (s. 72(3)).

The appellant in this case was arraigned before the Nairobi Chief Magistrate’s Court on a charge of robbery with violence, which carries a mandatory sentence of death. The date of his arrest was stated in the charge sheet to have been January 13, 1995 while the date of his first arraignment in court was stated as January 30, 1995, i.e. 17 days later.

The appellant was tried, convicted and sentenced to death. After his first appeal to the High Court was dismissed, he brought this second appeal in which his counsel argued that the High Court had erred in convicting and sentencing him when his constitutional right had been violated.

Appeal Judges E.O. O’Kubasu, J.W. Onyango Otieno and W.S. Deverell were unanimous in their defence of constitutional rights: even though the delay of three days in bringing the appellant to court did not cause him any substantial prejudice and although the evidence showed that he was guilty as charged, nevertheless the failure by the prosecution to abide by the requirements of the Constitution could not be disregarded. The prosecution, the Judges found, on whom the burden of proof rested, had failed to satisfy the High Court that the appellant, who was charged with a capital offence, had been brought before the court as soon as was reasonably practicable.

Being mindful of the fact that the appellant had been in custody for over 12 years and that his two co-accused persons had died while in custody, the High Court set aside his conviction and sentence and ordered that he should be set at liberty.

Belief in witchcraft and a defence of provocation
Patrick Tuva Mwanengu v Republic [2007] eKLR

Even though a majority of Kenyans are adherents of one or other of the major world religions, largely Christianity, Islam and Hindu, the belief in witchcraft and occult practices is a regular feature of the life of several communities especially in the rural countryside. In such communities, witches and witchdoctors enjoy mixed fortunes. They are revered when they are seen to provide relief to human afflictions like disease and barrenness but abhorred when they are suspected of conspiring with a person’s enemies to cause him physical harm, financial ruin, death or other ill fortune. News reports of public lynching of suspected witches and witchdoctors are scarcely received with surprise.

Late in July 2007, the Court of Appeal in Mombasa considered a criminal appeal from a person who had been convicted of the murder of a suspected witchdoctor. The High Court had convicted Patrick Mwanengu of murdering Gona Mwanengo and sentenced him to death. Patrick argued that since the cause of the physical assault which led to the death of Gona was that he (Gona) had performed an act of witchcraft against Patrick and his son, Patrick’s conviction for murder should be reduced to the lesser offence of manslaughter.

In Kenya, murder is defined as causing the death of a person through an unlawful act and with malice aforethought. The only punishment for murder is the death sentence. Manslaughter, on the other hand, is defined as causing the death of a person by an unlawful act or omission, usually in the nature of culpable negligence, accompanied by an unlawful intention (Penal Code (Chapter 63 of the Laws of Kenya) sections 202 and 203). The punishment for manslaughter is applied on a sliding scale depending on the seriousness of the circumstances with a maximum of life imprisonment.

In a unanimous decision, Court of Appeal Judges R.S.C. Omolo, E.O. O’Kubasu and P.N. Waki held that though each case should be decided on its own circumstances, there was no general rule that a belief in witchcraft would avail the defence of provocation to a person accused of murder. There ought to have been evidence that the deceased performed an act of witchcraft against Patrick or another person under his immediate care and in his presence so that Patrick was angered to such an extent that he was deprived of his power of self-control and induced to assault the deceased.

Perhaps if the High Court had directed itself on these principles, it might have arrived at a different conclusion. Patrick was entitled to the benefit of this doubt. His appeal was allowed his conviction for murder was substituted with a conviction for manslaughter and a sentence of imprisonment for 18 years.

The use of assessors (jurors) from the same ethnic background as the accused
Said Kupata Mwakombe v Republic [2007] eKLR

In Kenya, the original jurisdiction to conduct trials for the offence of murder rests exclusively in the High Court. As a matter of statutory procedure, these trials are conducted with the aid of three assessors, whose role is somewhat more like that of a jury in other jurisdictions, save that their opinion is not binding on the Judge (Criminal Procedure Code (Chapter 75 of the Laws of Kenya) section 262).

In this case, the appellant had been tried before the High Court on an information charging him with the murder of his wife, Mapenzi Mukoka, contrary to sections 203 and 204 of the Penal Code.

The appellant belonged to the Giriama Community of Malindi District in the Coast Province of Kenya, a community which had stuck to its customs and traditions. However, the trial was conducted with the aid of assessors who hailed from Nyanza province. Nyanza Province is substantially removed from Coast Province both in terms of geographical distance and cultural practices. Ultimately, the High Court rejected the appellant’s defence of intoxication and provocation, convicted him sentenced him to death.

In their decision on the appeal delivered in mid July 2007, Court of Appeal Judges R.S.C. Omolo, E.M. Githinji and W.S. Deverell reiterated that the purpose of assesors is to ensure that as far as possible, the decisions of fact made by the Court are informed by the notions of that part of the society to which the accused person belongs. The three assessors to be selected for a particular trial, the Court remarked, should come from the same district or province as the accused persons, judicial notice being made of the fact that in Kenya a district is occupied predominately by a distinct and relatively homogenous community.

In the circumstances of this case, the Court further noted, it was only an assessor from the appellant’s community who could know the temperament of that community and guide the Court to know whether the frustrations the appellant had encountered in his efforts to ensure the return of his estranged wife were such as to deprive him of the power of self-control and to induce him to commit the assault which led to her death. As it was uncertain what the outcome of the trial would have been if it had been conducted with assessors from the appellant’s community the appellant was entitled to the benefit of the doubt. His conviction was reduced to manslaughter for which he was sentenced to imprisonment for 20 years.

The decision came at time when a law proposing to abandon the use of assessors in the criminal justice system was being considered by Kenya’s Parliament. The Statute Law (Miscellaneous Amendments) Bill, 2007 is likely to be passed into law before the beginning of 2008.