When a death row prisoner has his date with the executioner commuted and starts a lifelong relationship with the inside of a prison instead, he will usually continue to explore every avenue to escape a prolonged life behind bars. Those explorations seldom amount to anything, but in the case of two prisoners waiting out their life-term in a jail in Kenya, luck – and a failure of Parliament to sort out a conflict of laws – was on their side.

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Peter Muindi and Jimmy Musila were originally charged and convicted of attempted robbery with violence. On conviction they were sentenced to death. Though the death penalty was commuted to life, they lost both their appeal attempts (to the High Court and the Court of Appeal) on the question of conviction and appropriate sentence. That seemed to be the end of the road: they would have to reconcile themselves to spending the rest of their lives in jail.

And then they, or their lawyers, thought of a new argument on sentence – but would it work? Would a court even agree to re-open the matter since their case had effectively been finalized? Would they have to ask the Supreme Court to hear the new argument they wanted to put forward?

They turned to the constitutional and human rights division of the high court in Mombasa, where Judge Eric Ogola heard their argument on why their life sentences should be re-considered, even after they had lost two appeals on the issue.

Their legal team argued there were two sections of the Penal Code that appear to offer conflicting provisions on sentence in a case of this kind.

Section 297 (2) stipulates the death penalty for attempted robbery with violence. On the other hand, Section 389 provides a seven-year sentence for “an attempt to commit a felony”. According to counsel, attempted robbery with violence amounted to a felony and so it should be considered as a Section 389 offence.

He argued that there was a contradiction between the two sections, and that this contradiction infringed the rights of Muindi and Musila. Section 297 (2) was unconstitutional: delays and inconsistencies in carrying out the death sentence amounted to cruel and degrading treatment and besides, they were entitled to the lesser sentence in such a case.

But as far as the director of public prosecutions was concerned, the High Court should not even hear the matter. It had been finalized by appeal decisions of the High Court itself and by the Court of Appeal and that was the end of the line unless they asked for the Supreme Court’s involvement.

Judge Ogola however found that the High Court had jurisdiction to decide issues of fundamental rights’ violations, even when a criminal case had run its course.

In his recent decision on the matter he said the crucial question was whether attempted robbery with violence was a felony and concluded that indeed it was. While one section of the Penal Code provided the death sentence for this crime, another stipulated a term not exceeding seven years. “There is clearly a conflict between the two sections as to the sentence that should be meted out for the offence of attempted robbery with violence.”

Did that conflict infringe the fair trial rights of the two convicts? The drafters of the Penal Code “seem to have created two sentences for the offence in question”, in circumstances where the constitution made clear that an accused should be entitled to the least severe sentence in such a case.

Having decided that their rights were infringed by the conflict in the Penal Code, the judge pointed out that this was not the first time a court has had to deal with the problem. For example, in two cases dated 2010 and 2011, the Court of Appeal had reached the same conclusion – that the accused should benefit from the lesser sentence. The conflict between these same two provisions was clearly pointed out by that court, which said the conflict in the law “may only be resolved by Parliament”.

Judge Ogola thus ruled that there was indeed a conflict between the sentencing provision in the two sections, and that the two men were entitled to benefit from the lesser sentence. Since they had already served more than the seven years provided in the alternative section, they were to be released from prison at once, unless being held for other reasons.

The judgment is interesting for at least two reasons: the High Court stood firm, showing it was not about to give up its jurisdiction to hear matters of constitutional and human rights significance simply because all appeals in a case had otherwise been exhausted. Just as important, however, the judgment showed that Parliament, despite earlier decisions highlighting a problem with conflicts over sentencing, had done nothing in the last nine years to sort out the issue.

* Newsletter, Judicial Institute for Africa (Jifa), 16 April 2019