Kenya: Court Rules Detention of the Mentally Ill Unlawful

Close up prisoner holding bar in jail. Fotosearch

Prisoners with mental illness have secured a major win after a court declared their detention at the President’s pleasure unconstitutional.

High Court Judge Anthony Mrima has also declared as null and void three sections of the Criminal Procedure Code that allow the detention of mentally ill criminal suspects in prisons after conviction but before sentencing.

The judge said those sections or any other law providing for the incarceration of people of unsound mind constitute a threat to the doctrine of separation of powers and the independence of the Judiciary.

Also declared unlawful is the imprisonment of inmates found ‘guilty but insane’ by trial courts and have been staying in prison at the President’s pleasure.


Holding a convict at the President’s pleasure means detention for an indefinite time – it can be very short or it can be a life sentence.

When a court commits a convict to such a prison term, the inmate’s fate is left in the hands of the Office of the President.

Ruling on a petition filed by 18 prisoners in 2020, Justice Mrima noted that there are thousands of inmates in various prisons at the President’s pleasure and that such a state of affairs strains the meagre resources allocated to the Kenya Prisons Service.

Five of the petitioners are among lawyers and law students providing legal aid to indigent prisoners in the Kamiti Prison under the sponsorship of the Africa Prisons Project, while 13 are insane persons held in various prison facilities.

They challenged the constitutionality of the various provisions of the law that allow the holding of inmates in prisons at the President’s pleasure.

A case in point is a prisoner named Nicasio Njeru Ngangi, aged 70.

He has been in detention since October 2010, when a special finding was made against him that he was ‘guilty but insane’ and has never undergone any medical assessment, review or treatment since.

Another case is that of Mr Patrick Kang’ethe Irungu, 58, who has been held at the Kamiti Prison at the President’s pleasure since taking plea on April 19, 2012.

He has never been tried or his case reviewed. He has not received any medical assistance either.

Mental challenges

Some inmates in the suit had not been tried or did not complete their trials on account of the mental challenges and the courts made orders that they be held at the President’s pleasure in various prisons.

Justice Mrima also ruled that a suspect with mental challenges is a person with a disability and ought to be accorded the necessary protection and assistance required under the Constitution and the law.

Hence, an accused person who is ordered to be detained at the President’s pleasure falls under the category of persons with disabilities.

“An accused who is found to be unfit to stand trial or to continue participating in a criminal trial due to mental challenges or an accused who is tried for a criminal offence, and was found to have been insane at the time of committing the crime is a person with disability,” said the judge.

He directed that courts will henceforth not commit criminal suspects suffering from mental illnesses to any prison to be detained under the President’s pleasure.

And no prison will accept and detain any person found to suffer from mental challenges.

“For clarity, a prison facility shall only accept such persons with mental challenges committed to the facility under the orders of the court, which orders shall not include any order to hold such persons under the President’s pleasure,” the judge said.

Mental status

He also ruled that the President’s Advisory Committee on the Power of Mercy has no authority to deal with convicts with mental challenges until they are sentenced by the courts.

The prisoners, the judge ruled, will be arraigned again before their respective trial courts for resentencing.

The courts are expected to make appropriate orders and directions upon taking into account the mental status of the accused and the period that they have been detained in prison at the President’s pleasure.

Judge Mrima directed that copies of the 38-page judgment be transmitted to the commissioner-general of the Kenya Prisons Service, the Speaker of the National Assembly, the registrar of the High Court and the registrar of the subordinate courts.

“(The) Speaker of the National Assembly shall take steps towards ensuring that the sections of the Criminal Procedure Code are aligned with the Constitution and in terms of this judgment,” he said.

“The Speaker shall file an affidavit in this court on the status of implementation of this judgment in the next 12 months.”

The Attorney-General did not participate in the case but the Director of Public Prosecutions (DPP) did, though he lost.

The DPP’s main contention was that the petitioners failed to demonstrate how their rights and fundamental freedoms were violated.

The Kenya National Human Rights Commission participated as an interested party.

Nation Africa


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