NAIROBI, Kenya, May 12 – Minors will no longer be jailed at the Presidents pleasure following a verdict by the High Court declaring unconstitutional, a section of the Penal Code that gives the Head of State powers to do so.
Justice John Mativo also declared Friday that it is not only unlawful to the extent that it violates the principle of separation of powers, but also international conventions governing the rights of children.
As a result, the judge has directed the Attorney General and Parliament to move with speed to enact the necessary amendments to ensure that Section 25 of the Penal Code conforms with Article 53 of the Constitution.
Following the verdict, six minors who were jailed 12 years ago at the Presidents pleasure will now enjoy their freedom after the court ordered their immediate release from prison.
“Having found that the challenged provisions offend the provisions of the Constitution and considering that the petitioners were all below 18 years at the time of the commission of the offences and conviction the court directs they be released from prison forthwith,” justice Mativo ordered.
While issuing the verdict, Justice Mativo observed that sentencing of children is a matter of great constitutional concern in the criminal justice system and preferential treatment should be accorded to them.
“I must emphasise that children’s rights are of the utmost importance in our society. Courts are hence required to distinguish between children and adult offenders when passing sentences,” he ruled.
Alois Onyango Odhiambo had petitioned the court on behalf of the minors who were charged and convicted in various courts in the country had argued that detaining persons aged below 18 years at the Presidents pleasure violates the Supreme law.
The court was also told that allowing the President to determine the term of the sentence in such cases is unconstitutional as it amounts to giving exercise of judicial authority in the Executive contrary to the doctrine of separation of powers.
Those jailed were Benson Njihia 13, Joseph Mugo 8, Jackson Nyakundi 21, Stephen Mungai 13, Thomas Owino 22 and Nzioka Mwongoi 14 years.
When an offender is to be imprisoned at the Presidents pleasure, the court forwards to the President notes of the evidence adduced during trial expressing his or her observations and recommendations.
Justice Mativo was further told that sentencing a person at the Presidents pleasure for an undefined period of time offends the children rights by denying them their liberty.
The Attorney -General and Director of Public Prosecutions (DPP) who had been named as respondents did not defend the suit but only told the court that the sections contested by the petitioners did not offend the supreme law.