BY SAM ALFAN.
High Court on Wednesday stopped further prosecution of former Machakos Senator Johnstone Muthama on hate speech charges after declaring penal code on incitement to violence unconstitutional.
In a judgement by Justices Jessie Lesiit, Luka Kimaru and John Mativo issued an order prohibiting the director of public prosecutions Noordin Haji from further prosecuting Muthama on the basis of the charge sheet presented to court.
The judges said that the section shifts the legal and evidential burden of proof to the accused person before the prosecution has discharged its legal burden of proof of establishing its case in a criminal trial thereby violating the provisions of Article 25(c) , 49(1) (a) (ii) and (iii) , (b) , (d) and Article 50 (2) (a) , (i) and (I) of the constitution.
“That section 96 of the penal code is unconstitutional to the extent that it shifts the legal and evidential burden of proof to an accused person before the prosecution has discharged its legal burden of proof of establishing its case in a criminal trial, thereby violating certain provisions of the constitution,”held the judges.
The court further recommended that the Attorney General Kihara Kariuku prepares a bill to be presented to parliament with a view of remedying the deficiency in section 96 of the penal code so that it is amended to conform with the Constitution as stipulated in section 7 of the sixth schedule to the constitution.
The judges directed that the AG should do so within a period of one year so that the purport and intent of the impugned provisions is maintained.
The judges said the competency of the charge sheet is matter for the trial court.
“Section 96 (a) of the penal code shifts both the legal burden and the evidential burden of proof to an accused person even before the prosecution has discharged its legal burden of proof,”noted the Judges.
The function and effect of the said section is to relieve the prosecution of the burden of proving all the elements of the offence with which the accused is charged.
The provision shifts and evidential burden of prove to the accused person thereby infringing the presumption of innocence which is entrenched in article 50 of the constitution.
The bench said that the section is not only in conflict with article 50 of the Constitution but also offends the long established rule of the 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 doubts.”
Lawyer John Khaminwa submitted that it does and as a consequence it has no validity under the constitution because it infringes section 50 of the Constitution which guarantee an accused person a fair trial and presumption of innocence before and during the course of trial.
He also argued that the provision offends an arrested person’s right to remain silent as provided for in the law.
Khaminwa further had argued that the police and the DPP applied the law in a selective and discriminatory manner in making the decision to investigate and charge Muthama.
