In what is likely to generate heated debate, the High Court has declared the penal code on incitement to violence and disobedience of the law as illegal and unconstitutional.
Justices Jessie Lessit, Luka Kimaru, and John Mativo, in their ruling, 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.
According to the judges, it is always the prosecution’s duty to establish its case in a criminal trial, saying section of the penal code infringes and transgresses on the presumption of innocence of an accused person in a criminal trial.
The penal code states that 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 according to the judges, it is always for the prosecution to prove the guilt of the accused person and that the proof must be beyond a reasonable doubt.
“If after all evidence the court is uncertain as to where the truth lies, the constitutional presumption of innocence is replaced by a statutory presumption of guilt. This is an impermissible position where a statutory provision supplants a constitutional edict,” stated the judges.