In Summary
  • The bench held that the said section of the penal code infringes and transgresses on presumption of innocence of an accused person in a criminal trial.
  • Judges say section 96(a) of the penal code shifts evidential burden of proof to an accused person. 

oThe High Court has declared as unconstitutional a provision of Kenya penal code on incitement to violence and disobedience of the law.

The court on Wednesday stopped prosecution of former Machakos Senator Johnstone Muthama on hate speech-related charges.

PENAL CODE

A three-judge bench comprising Justices Jessie Lessit, Luka Kimaru and John Mativo said section 96(a) of the penal code is unconstitutional as it shifts the legal and evidential burden of proof to an accused person from the prosecution. 

While ruling on a petition filed by the former senator challenging his prosecution over incitement to violence, the judges said it is always the prosecution’s duty to establish its case in a criminal trial.

The bench held that the said section of the penal code infringes and transgresses on presumption of innocence of an accused person in a criminal trial.

BURDEN OF PROOF

Section 96(a) of the penal code says the burden of proof lies upon any person who utters, prints or publishes any words or does any act calculated to bring death or physical injury to another person, class, or community.

But the three judges found that the said section of the law offends the long-established rule of common law on the burden of proof that “it is always for the prosecution to prove the guilt of the accused person, and that the proof must be beyond a reasonable doubt.”

In the ruling, the judges said the inevitable effect of the disputed section of the penal code is that the accused person is under compulsion to adduce evidence of reasonable cause to avoid conviction even if the prosecution leads no evidence to establish a case.

“If after all evidence the court is uncertain as to where the truth lies, the constitutional presumption of innocence is replaced by a statutory presumption of guilt. This is an impermissible position where a statutory provision supplants a constitutional edict,” stated the judges.

FAIR TRIAL

According to the bench, the disputed section also infringes on a cluster of rights associated with a fair trial.

These are the general right to a fair trial, the privilege against self-incrimination, the right not to be a compellable witness against oneself and the right to silence guaranteed in Article 49 (1) (a) (ii) and Article 50 (2) of the Constitution.

Following the findings, the court directed the Attorney-General to prepare a Bill to be presented to Parliament with a view to remedying the deficiency in the said section of the penal code.

They directed the Attorney-General to do so within a period of one year.

The bench observed that it should be amended to conform to the Constitution a stipulated in section 7 of the sixth schedule of the Constitution.

In the petition, Mr Muthama, through lawyer John Khaminwa, stated that on September 23, 2015 at a public rally at Uhuru Park, Nairobi, he made utterances in opposition of government policies.  

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