VIOLATION OF CONSTITUTIONAL RIGHTS NULLIFIES PROSECUTION

Reported By Nicholas Okemwa

Nairobi

Republic v Amos Karuga Karatu [2008] eKLR ()

High Court of Kenya at Nyeri

M. S. A. Makhandia (Judge)

26th May 2008

A prosecution mounted in breach of the law is a violation of the
rights of the accused and it is therefore a nullity. It matters not
the nature of the violation. It matters not that the accused was
brought to court one day after the expiry of the statutory period
required to arraign him in court.

On 26th May 2008, Mr. Amos Karuga Karatu who had been charged with
the offence of murder was set free by the Nyeri High Court due to the
fact that his constitutional rights had been violated.

Mr. Karatu had pleaded not guilty to the charge and his trial was
initially fixed for 13th December 2006 but eventually commenced on
4th January 2007 before Justice Makhandia. The prosecution called a
total of 10 witnesses and closed their case on 9th April 2008.

After the close of the prosecution's case, Mr. Gathiga Mwangi,
counsel appearing for Mr. Karatu, made brief submissions on the fact
that the accused had no case to answer. In these submissions, he
alluded to the alleged violation of Mr. Karatu's constitutional
rights enshrined in section 72 (3) (b) and 77 (1) of the Constitution
of Kenya. He contended that the accused was arrested on 19th January
2006 but was charged on 9th June, 2006 over 5 months later. This was
alleged to be a violation of the accused constitutional rights as he
ought to have been charged within 14 days upon his arrest and tried
within a reasonable time. The delay according to counsel had not been
sufficiently explained by the investigating officer. He maintained on
the premises that no prima facie case had been made out by the
prosecution in the circumstances to warrant the accused being put on
his defence.

Mr. Orinda, the Principal State Counsel, opted not to respond to
those submissions. All he said was that he would rely on the evidence
on record and that indeed a prima facie case had been established
against the accused.

The issue of the violation of Mr. Karatu's constitutional rights
arose from the cross examination of the investigating officer, Mr.
Mwangi, who stated that though he was through with conducting the
investigations within two weeks, he had taken 6 months to bring the
accused before the court due to the processing of the file through
the offices of the DCIO, PCIO and the state counsel.

The court took issue with the investigating officer's explanation of
the delay in bringing the accused before the court. It noted that the
investigating officer did not even explain what the offices of the
DCIO, PCIO and the state counsel were required to do with the file.
The court then proceeded to examine whether this explanation passed
the litmus test set out in section 72 (3) (b) and 77 of the
Constitution, that is, that the accused person despite the delay was
brought before a court as soon as was reasonably practicable and,
that accused would be accorded a fair hearing within reasonable time.

The court found the investigating officer's explanation to be
wanting. Justice Makhandia stated that a period of 6 months delay
could not be explained away on the basis that the investigating
officer's hands were tied and he could do nothing due to the
procedure of processing the investigations file in their systems. He
further remarked that the constitutional and fundamental rights of an
accused person could not be sacrificed at the altar of the so called
police procedures.

The court took the view that the law of the land had to be obeyed
particularly by those entrusted to enforce it. It said that if the
supreme law of the land stated that an accused person had to be
brought before court within 24 hours in the event of a non-capital
offence and 14 days for a capital one, that law had to be strictly
observed and failing this, the police had a burden cast on them to
satisfy the court that the accused had been brought before court as
soon as was reasonably practicable. The court held that the
investigating officer was unable to discharge that heavy burden in
the circumstances of the case. It opined that the offices of the
investigating officer, the DCIO, PCIO and the state counsel were lax,
did not treat the case with the seriousness it deserved and had no
qualms trampling upon Mr. Karatu's constitutional rights more so the
fair trial provisions of the Constitution of Kenya.

The court went further to opine that this was no longer the 1980's
where the fundamental rights of the citizens were trampled upon by
the police and the courts of law then could not stand up to challenge
such conduct. The court took note of the Court of Appeal's recent
remarks that the courts chose to see no evil and hear no evil, taking
part in a conspiracy of silence that gave rise to the infamous Nyayo
House torture chambers, a history which the courts could never be
proud of. The court said that this was never be allowed to happen
again in this country and that it was a result of the foregoing
legacy that the citizens of this country had lost faith in the
Judiciary particularly when it came to the enforcement and securing
the constitutional and fundamental rights of the citizenry.

The court proceeded to state that the time was nigh for the
Judiciary to rise to the occasion and reclaim its mantle by
scrupulously applying the law that sought to secure, enhance and
protect the fundamental rights and freedoms of an accused person. A
prosecution mounted in breach of the law was a violation of the
rights of the accused and it was therefore a nullity. It mattered not
the nature of the violation. It mattered not that the accused was
brought to court one day after the expiry of the statutory period
required to arraign him in court. Finally the court stated that it
mattered not that the evidence available against him was weighty and
overwhelming for as long as that delay was not explained to the
satisfaction of the court, the prosecution remains a nullity.

The court relied on the decision in Albanus Mwasia Mutua v Republic
where the court stated that at the end of the day, it was the duty of
the courts to enforce the provisions of the Constitution, otherwise
there would be no reason for having those provisions in the first
place.

Ultimately, the court held that the accused having been brought to
court in breach of the provisions of section 72 (3) and 77 (1) of the
constitution, his continued prosecution was illegal and a violation of
his constitutional rights. It also ruled that no prima facie case has
therefore been made to warrant the accused being put on his defence.
Mr. Karatu was subsequently acquitted and set free.

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