BENCH WATCH
Man’s appeal wins him three years less in jail

 A Kenya Standard story

He pleaded not guilty and his trial began on March 23, 2004, before Lady Justice Wanjiku Gacheche who sat with three assessors (as the law then provided).

The prosecution called 10 witnesses. Except for Mr Isaya Psinen Ngurasia, who said he witnessed the killing, the rest of the witnesses recounted hearsay.

Ngurasia had told the court that he, together with others who did not testify, was drawn to Kelan’s home by screams at about 6pm on the fateful day.

Justice O’Kubasu

The group left their merrymaking at a circumcision ceremony to respond to the distress call. On arrival, they found the accused beating his wife with a stick.

Ngurasia said he tried to restrain Kelan, who turned his wrath on him before he resumed hitting Chemurungu. His wife died from the beating and the body was taken to Mt Elgon Hospital.Drunk and disoriented

A police constable, Mr Henry Namachanja, and three other officers who arrested Kelan, testified that the appellant was “obviously drunk at the time of arrest and had no idea what had happened”.

A walking stick alleged to have been used in the beating was produced as evidence.

At the close of the prosecution, the appellant was put on his defence and he chose to make an unsworn statement.

In the statement, Kelan confirmed he and his wife had attended the circumcision ceremony where he had drank busaa and tea; that he was invited to another party at 4pm on the same day where he drank chang’aa, and that he stayed at the venue until 6pm.

Afterwards, his host escorted him to the home of a Mr Kiprop Chepaipai, who was hosting another party.

There, Kelan drank muratina, after which he found himself in police custody on March 3, 2002 at 6pm.

He was stunned to discover that he had been arrested in connection with his wife’s death.

“I am shocked and sad, because the deceased was a wife I loved,” he said in his statement.

Kelan did not deny inflicting the fatal injuries, but pleaded that he was intoxicated and did not know what happened

After the trial, Justice Gacheche carefully considered the evidence and the unanimous verdict of guilty of the lesser charge of manslaughter.Eight years for manslaughter

Justice Omolo

Kelan was aggrieved by the conviction and the sentence. He moved to the Court of Appeal in 2006, asking to be released on the grounds that he was not involved in the commission of the offence.

Kelan, apart from seeking his release, asked the court to allow him to present written submissions. He was allowed to do so.

The appellate judges — Justices Riaga Omolo, Emmanuel O’Kubasu and Daniel Aganyanya, JJ A — noted the long submissions were “certainly prepared for him by somebody who knows something about the law”.

Chirchir on his part submitted that this appeal ought to be dismissed, as, in his view, the evidence against Kelan was overwhelming.

In a seven-page judgement of the court delivered barely five days after the hearing, the court upheld Kelan’s conviction for manslaughter.Reduced sentence

Said the Judges: “We have now re-evaluated the evidence and bearing in mind that we neither saw nor heard the witnesses give evidence. We are of the view that this is a case in which the appellant and his wife attended a circumcision ceremony, where the appellant consumed large amounts of various types of drinks, rendering him completely intoxicated to the extent that he re-discovered himself almost 24 hours later”. 

Justice Aganyanya

They went on: “From the foregoing, it would appear the appellant was indeed so intoxicated that he was incapable of forming an intention to commit murder. We are in entire agreement with Justice Gacheche in her findings that the appellant caused the death of his wife unintentionally.”

However, the judges found the sentence of eight years imposed on the appellant harsh and excessive.

“We accordingly reduce it to five years,” they ruled.

The bench said the sentence of five years should run from the date the appellant was sentenced by the High Court, that is, February 2, 2006.

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A Nation.ke Story by MICHAEL MURUNGI

The Court of Appeal has ruled that in a criminal trial, the State, acting through the prosecutor, does not have the right to be supplied in advance with the particulars of the evidence which an accused person plans to call in defence.

The court’s ruling puts to rest the question whether the right of an accused to be supplied with the prosecution’s case in advance of the case, which  has established itself as one of the hallmarks of a fair trial, involves a reciprocal duty on the accused to also disclose his evidence in advance to the prosecution.

The decision arose in an appeal from the decision of the High Court in the trial of Lord Delamere’s grandson Thomas Patrick Cholmondeley who is charged with murdering Gilgil stonemason Robert Njoya Mbugua in May 2006 at Soysambu Ranch in Gilgil.

At the beginning of the trial in September 2006, the prosecution, led by the Deputy Public Prosecutor (DPP), Mr Keriako Tobiko, had supplied Mr Cholmondeley with all the relevant material forming the substance of the case against him, including the names of prospective witnesses and their statements.

After the witnesses had been called and the case for the prosecution was closed, the High Court was satisfied that the prosecution had established a case against Mr Cholmondeley and he was put on his defence.

Mr Cholmondeley, through his lawyer, Mr Fred Ojiambo, informed the court that he was ready to proceed with his defence and that he intended to call seven witnesses.

It was then that the DPP asked the presiding judge, Mr Justice Muga Apondi, to issue an order directing Mr Cholmondeley to first provide the names of the witnesses, their statements and copies of certain forensic reports that he intended to produce in his defence.

The power to issue the order, as the DPP submitted, arose from section 60 of the Constitution, which gave the High Court unlimited original jurisdiction in civil and criminal matters, and from the inherent powers of the High Court to regulate its processes and procedures.

In his response, Mr Ojiambo wondered whether the prosecution was making an application for an interpretation of section 77 of the Constitution (on which the right of an accused to be furnished with the evidence of the prosecution is founded).

Mr Justice Apondi then adjourned the proceedings as he retired to consider his decision on the prosecution’s request. When the court reconvened on July 27, 2007, it delivered a ruling in which it invoked its inherent powers and directed the defence to supply the prosecution with the statements of the witnesses and forensic reports.

Appellate judges

That decision was the subject of this appeal which was presided over by Appeal Judges R.S.C. Omolo, E.O. O’Kubasu and J. W. Onyango Otieno.

In a unanimous decision delivered on June 13, 2008, the judges first dismissed an objection raised by the DPP on the ground that the Court of Appeal had no jurisdiction to hear the appeal. Because the basis of the appeal was that the High Court had made an order in the course of the trial which violated Mr Cholmondeley’s fundamental rights guaranteed by section 77 of the Constitution, the judges ruled that the Court of Appeal had jurisdiction to hear the appeal.

The judges agreed that it was now well settled that in order to satisfy the requirements of a fair trial guaranteed under section 77 of our Constitution, there is a duty on the prosecution to disclose to an accused the evidence which it intends to bring before the court in support of the charge.

That duty, they observed, also  includes disclosing to an accused evidence which the prosecution has in its possession but which it does not intend to use during the trial, whether it may weaken the prosecution’s case or strengthen that of the defence.

Pre-trial period

The duty continues during the pre-trial period and during the trial itself, so that if any new information is obtained during the trial, it must be disclosed.

“Any public prosecutor who sees his or her duty as being to secure convictions misses the point. As ministers of justice, public prosecutors must place before the court all evidence, whether it supports his or her case or whether it weakens it and supports the case for the accused,” the judges observed.

Having said that, the judges then considered what Mr Justice Apondi had referred to as “the million dollar question”: Is there a reciprocity of obligations between the prosecution and the accused? In other words, is the prosecution entitled to demand that the accused person should provide it in advance with the evidence he or she intends to adduce?

The answer was as simple as it was profound – the fundamental rights and freedoms of the individual set out in section 70-82 of the Constitution of Kenya, including the right to a fair trial, are rights which are inherent in each individual person living in Kenya and the State not being an individual person, it could not claim those rights.

There is not and there can be no question of reciprocal rights, or a level playing field or any such theory as between an accused person and the state.  No statute gives the state such privileges, and the Constitution does not give the prosecutors such powers. They cannot be given through the inherent power of the  court.

Fundamental rights

The Court did not find itself restrained by moderation of language when making the point to the prosecution: “The courts… must now vigorously enforce and enforce against the state the fundamental rights and freedoms of the individual guaranteed by the Constitution. Those rights cannot and must not be allowed to be diluted by…. allowing the state to claim reciprocal privileges. The state is the usual and obvious violator against whom protection is provided in the Constitution and it ought not to be allowed to claim the same privileges”.

Mr Cholmondeley’s appeal was allowed and the orders issued by the High Court were set aside. It was ordered that the murder trial should proceed to its conclusion.

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A Nation.Ke Story by FRED MUKINDA

A University of Nairobi lecturer who police held on suspicion he was the Rwanda genocide fugitive Felicien Kabuga, was sacked from Rwanda Cabinet in 1994.

Mr Charles Nyandwi, who resembles Mr Kabuga, also told detectives that he had been teaching at the Nazareth University.

He showed detectives a copy of a revocation letter to Kenyan authorities in which he denounced his Rwandese citizenship before becoming a Kenyan.

Sources close to the investigations also told the Nation that the man had widely travelled, regularly flying to European countries, including Germany and Belgium where his daughter lives. He used a Kenyan passport.

In Kenya, detectives traced his home in Ngong where he lives with his wife.

Presently, detectives are struggling to establish his relation to Kabuga since they sat in the same Cabinet prior to the 1994 genocide in Rwanda.

Other details show the man came to Kenya after being sacked. He had been a minister from 1980 to 1994.

However, fresh details emerging indicate Mr Kabuga has a son-in-law in Kenya.

The son-in-law, sources told the Nation, makes errands for Mr Kabuga.

The investigating team could, however, not establish if Mr Kabuga was in Kenya as alleged.

Man released

Mr Nyandwi was allowed to go home after spending a night in police custody.

The Nation also established that more teams have been assigned to the probe. They include National Security Intelligence Service as well as Intelligence attaches from US and Rwandese embassies. Belgium embassy officials are also following the matter.

Police spokesman Eric Kiraithe, in a statement, said they had been holding the wrong man. He had been arrested on Friday evening.

The Rwandese embassy in Kenya said Mr Kiraithe had also confirmed the identity of the man.

Mr Kiraithe said in the statement that police were acting on information received at the CID headquarters that a person suspected to be Mr Kabuga had been sighted in Ole-polos near Ngong in the outskirts of Nairobi.

Officers attached to the Diplomatic Police Unit had picked him up believing he was Mr Kabuga, who is wanted in connection with the 1994 Rwandan genocide by the International Criminal Tribunal for Rwanda.

Kabuga has been on the run for 14 years, since the 100-day slaughter in which 800,000 of his countrymen, primarily minority Tutsis and politically moderate Hutus, were hunted down and killed by Hutu extremist militias and members of the Rwandan army.

Mr Kabuga, a Hutu and close associate of President Juvenal Habyarimana,  owned Radio de Mille Collines that called for the mass murder of Tutsis and others.

The lecturer was taken to the Diplomatic police headquarters in Gigiri and held for several hours and later transferred to Special Crime Prevention Unit headquarters in Milimani.

Foreign Affairs minister Moses Wetang’ula said the lecturer he identified as Charles Nyandwi fled Rwanda for Kenya when the genocide began in April 1994.

He said the Rwandan government had corroborated Mr Nyandwi’s details.

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Related story:Mr Fèlicien Kabuga to get a lawyer appointed for him in Norway within the next 14 days or so.

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The United States Ambassador to Nigeria, Miss Robin Sanders, Saturday pledged that the US would continue its partnership with Nigeria in the fight against corruption.

Speaking at at the closing ceremony of the one-week training programme for law enforcement agents in Nigeria, sponsored by the US government in Lagos, Sanders said that the US would support the new leadership of Nigeria’s Economic and Financial Crimes Commission (EFCC).

The 37 participants, who benefited from the training, were drawn from the EFCC, Independent Corrupt Practices Commission (ICPC), National Drugs Law Enforcement Agency (NDLEA), the Force Criminal Investigation Department (CID) and the Code of Conduct Bureau.

Two instructors were brought in from the Federal Bureau of Investigation (FBI) and the U.S. National Police Department.

The Chairman of the EFCC, Mrs Farida Waziri, described the course as “worthwhile,’’ and that it had impacted positively on the capacity of the participants.

Waziri, who was represented by Mr Wakili Mohammed, Deputy Director Operations of the EFCC, said: “My expectation is to see the participants returning to their duty posts with fresh skills and insight.’’

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http://africanpress.wordpress.com source.apa

Sudanese Defence Minister Abdulraheem Mohammed Hussein on Sunday delivered a message to President Hosni Mubarak from his counterpart Umar El Bahir.

Hussein, who is currently visiting Egypt told reporters that the message concerned the participation of international forces in the mixed African peacekeeping force in Darfur in Sudan and a request for Egyptian police to participate in the force.

He also held similar talks with Foreign Minister Ahmed Aboul Gheit.

The Sudanese Defence Minister accused the regional and international forces, including Israel of supporting Chadian rebels of the Justice and Equality Movement in the attack of the city of Omdurman recently.

Meanwhile, he denied reports that Iran was supporting the rebel movement, saying “there is no evidence on that .. we did not find any Iranian weapons used by the movement.”

He also denied the presence of Al-Qaeda in Sudan.

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http://africanpress.wordpress.com source.apa

The government of south Sudan has opened a liaison office in Kinshasa in accordance with the January 2005 agreements the Sudanese politicians signed in Nairobi, Kenya.

The office is opened with the approval of the governments of Sudan and DRC Congo. It will cover other Central African countries, it said.

Present at the opening ceremony together with the Regional co-operation minister of south Sudan Dr. Barnaba Marial Benjamin, the ambassador of Sudan Antoine Ron said the office is not “another embassy”.

The 9 January 2005 inter-Sudanese agreements enabled to end a twenty-year war opposing the Christian and animist south to the ruling Arab minority of the north.

It is not just one agreement but a whole set of separated agreements on different topics and signed on different dates since 2002.

Known as the “Machakos protocol” named after the small Kenyan city where it was signed in July 2002, the first of these agreements provides, among others, for a self-determination referendum for South-Sudan after six years interim period which is preceded by pre-interim six months period.

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A new comment on the post #6486
http://africanpress.wordpress.com/2008/06/15/raila-the-luo-may-now-become-a-kikuyu-elder-an-abuse-of-the-gikuyu-tradition/

By Author : KN (IP: 68.33.67.202 , c-68-33-67-202.hsd1.md.comcast.net)

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Commentary:
Before someone becomes a Kikuyu elder, One must must meet the following conditions.

i) The Candidate  and his last born son must be circumcised.
ii) A candidate  from  another tribe,  must denounce his tribe(This is done by offer of 3 sheep)and an Elder (muchuha) of his choice will become his/her God father.The person is not entitled to any dowry for his daughters and the dowry goes to the Muchuha.
iii) He must be recommended by athuri a matathi and Athuri a maturango(Elders of Matathi and those of Maturango.)These two recommend the person to Arathi.
iv) The Arathi (12 in number) then verifies the persons past to see if he/she has been involved in any murder or general crime against the community.

If the person has met those conditions, he is given two mithigis(Sticks).One is straight (signifying one God) while the other is two pronged at the end Signifying Ngoma (Kikuyu right word for Ancestoral spirits, not satan)

The muthigi was taken to Kirinyaga by the arathi for 40 days where they were to speak with God.its then that they come up with a decision of whether to make a person an Elder.

when all this is done the person receives the following items

1. Muthigi (stick-two pronged)-signifying power to lead
2.  Rwenji (Circumcisers knife)-power to circumcise
3. Kioho kia migathi (stringed Beads)-Power to choose what other elders and agemates will be adorning.
4. Ruhiu (Panga/sword)-power to slaughter a goat

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Published by African Press International – api