Yesterday, 12th March 2020, The High Court acquitted Gatundu South MP Moses Kuria of incitement to violence charges for a similar High Court declaration that the Kenya penal code on incitement to violence and disobedience of the law is unconstitutional.
While terminating a case that arose in 2015, Milimani Senior Principal Magistrate Kennedy Cheruiyot said the High Court’s ruling of January 29 remains in force as no appeal has been filed.
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.
The magistrate ordered Mr Kuria’s release on the Sh3 million bond he deposited while awaiting determination of the case. The MP was accused of committing the offence on June 26, 2015 at Gatundu Stadium in Gatundu town, Kiambu County.
On February 17, when his case came up for hearing, his lawyer Francis Munyororo told the court that the legal clause the prosecution relied on had been declared unconstitutional.
Mr Munyororo served the trial court and the prosecution with a copy of the High Court’s judgment as he sought his client’s acquittal.
Mr Kuria faced two criminal counts of incitement to violence contrary to section 96(a) of the Penal Code, which a three-judge bench nullified.
Justices Jessie Lessit, Luka Kimaru and John Mativo found that section 96(a) should not be allowed to stand as it shifts the legal and evidential burden of proof from the prosecution to an accused person.
In acquitting Mr Kuria, the magistrate noted that the judges recommended that the attorney-general prepare a bill to be presented to Parliament with a view of remedying the deficiency in section 96 (a).
The bill, they said, should facilitate amendment of that section of the law so it conforms with the Constitution as stipulated in section 7 of its Sixth Schedule.
They said the AG should prepare the bill within one year so that the purport and intent of the disputed provision is maintained.
Section 96(a) 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 judges found that the 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 reasonable doubt”.
In their ruling, they said the inevitable effect of the disputed section 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.
Mr Kuria is the fourth politician to benefit from the High Court’s ruling.
The others are Makadara MP George Aladwa, former Machakos Senator Johnstone Muthama and ODM party activist Japhet Muroko. The three were acquitted in February by Milimani Chief Magistrate Francis Andayi. Their lawyer John Khaminwa said the case was no longer sustainable as section 96(a) of the Penal Code now lacks force of the law.
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