Tuesday, May 1st, 2018
LILONGWE-(MaraviPost)-Ugly scenes continue to rage on for the ongoing Alliance for Democracy (AFORD) convention at Don Bosco Institute Centre in the capital Lilongwe where it has reached a deadlock.
Despite the party’s National Executive Committee (NEC) meeting inside the convention room over rigging claims as reported earlier, the situation remains pathetic.
Delegates have been left unattended sleeping on the floor at the venue waiting the party’s official communication on what next to go for the Indaba.
Earlier, there is ugly scenes at the much awaited Alliance for Democracy (AFORD) convention under way at Don Bosco Institute Centre in the capital Lilongwe whereby two camps; President Enoch Chihana and contender Frank Mwenefumbo were accusing each other of rigging the elections.
The Chinana camp was accusing Mwenefumbo of using illegitimate members entitled to vote.
Consequently, the party’s Secretary General Richie Bag missed before the process of voting which was later found suspecting to have carried documents of fake names for Mwenefumbo.
While other reports say the Malawi police apprehended a delegate to the convention who was found with pre marked ballot papers in favours of Chihana.
More updates to come.
The post Deadlock at AFORD Convention in Lilongwe; delegates left unattended appeared first on The Maravi Post.
Former president Joyce Banda has accused the administration of her successor and political rival Peter Mutharika of failing the country on fighting corruption.
In an exclusive interview with Nation Newspaper, at her Domasi house in Zomba on Monday, the former president specifically questioned the Mutharika administration’s failure to arrest any individual in connection with the K236 billion Cashgate.
Said Banda: “I don’t know what corruption is going on now because I have just arrived. I don’t want to compare myself with any leader, but when I was in office, I took action. If I feel money is being squandered, Malawians are going to suffer, I would take action regardless of the consequences.”
But Minister of Information and Communications Technology Nicholas Dausi, who is also the official government spokesperson, said institutions such as the Malawi Police Service (MPS) and the Anti-Corruption Bureau (ACB) have responsibility over the matter.
He said the Executive branch of government has no role in how the K236 billion Cashgate is being pursued.
Said Dausi: “The ACB has powers to investigate. They have investigation and prosecution powers. It is not up to the President to ask them to do that.”
Banda returned home on Saturday after a four-year self-imposed exile in the United States of America and South Africa. Since her return, the former president has made statements clearing her name from the Cashgate—the plunder of public resources at Capital Hill exposed under her watch in 2013—claiming that even the International Police (Interpol) cleared her.
Her Interpol clearance sentiments come against an MPS statement last August that there was a warrant of arrest for Banda for her alleged role in Cashgate. The police said the warrant was issued in February 2017.
Subsequently, her prolonged absence was interpreted as escaping possible investigation and trial, in case she was suspected of wrong-doing during her two-year presidency, by authorities.
But she said her four-year absence was meant to allow her successor run a stable government.
Banda questioned the administration’s failure to arrest any individual for the MK230 billion Cashgate.
The shooting on the night of September 13 2013 of former Ministry of Finance budget director Paul Mphwiyo outside the gate of his Area 43 residence in Lilongwe led to revelations of the plunder of public resources at Capital Hill.
Banda ordered an audit which British firm, Baker Tilly, undertook covering a randomly selected six-month period between April and September 2013. The audit established that about MK24 billion was siphoned from public coffers through dubious payments, inflated invoices and goods or services never rendered.
In May 2015, a financial analysis report by audit and business advisory firm PricewaterhouseCoopers (PwC) also established that about MK577 billion in public funds could not be reconciliated between 2009 and December 31 2014. The MK577 billion figure was later revised downwards to MK236 billion in another forensic audit released in 2016.
In December 2015, first Cashgate convict and former principal secretary for Tourism Treza Senzani, who died after her release in October 2016 after serving her three-year sentence, alleged in a witness statement that the highest level of the Juyce Banda administration was involved in Cashgate.
During Cashgate cases relating to the plunder of MK24 billion under her watch, some of the accused civil servants, who were eventually convicted, alleged she was involved in the scandal.
But Banda on Monday said the allegations and the subsequent investigation were politically-motivated. She claimed to have evidence that some of the Cashgate convicts were coerced to implicate her.
Banda said the last time she directly spoke with Mutharika was in April 2012 soon after her ascendancy to the presidency in line with constitutional order following the death of former president Bingu wa Mutharika.
On the political front, Banda hinted at the possibility of an electoral alliance between her former governing People’s Party (PP) and other political parties.
But she dismissed suggestions that she was championing an alliance with Mutharika’s Democratic Progressive Party (DPP).
She also maintained that she did not sanction a meeting between Mutharika and some PP legislators where the PP members of Parliament sought guarantees of her freedom.
On the 2019 elections and her possible candidature, she said the PP national executive committee (NEC) will decide next week during a meeting slated for Lilongwe.
BLANTYRE-(MaraviPost)-Lives of women and babies are at risk at Queen Elizabeth Central Hospital’s (Qech’s) Gogo Chatinkha Maternity Wing because of over-crowding as pregnant women scramble for services, a situation made worse by a temporary closure of Limbe Health Centre.
In Lilongwe, at Kamuzu Central Hospital, people are having to pay MK2,000 to have their patients carried upstairs to wards because an elevator is not working.
Margaret Chirwa from Lilongwe said she paid some guards to carry her husband to the male ward at KCH.
“I only had K2,000 and I was compelled to pay that MK2,000 as I didn’t have the energy to carry my husband upwards,” Chirwa said.
One of the guards that we talked to admitted to be in the business of carrying patients and dead bodies to and from the wards and to the mortuaries.
“All I am doing is to ease the burden that has been created by the non-functional hospital elevators and I cannot do that for free. I need at least MK2,000 for the services because I have to buy anti-germs soap to clean myself after everything,” the guard said.
Qech is also struggling to treat pregnant women and babies, as there is a lot of delay to attend to emergency situations such as Caesarean Sections since its operating theatre is ever full and medical supplies are not enough.
Due to the delays, babies are either born dead (stillborn) or die in the nursery after sometime or suffer permanent brain damage which is discovered later in life. The theatre is ever busy that there is no much time to sterilise equipment and this is putting women and new born babies at risk of infections (Sepsis).
One out of every 37 children in Malawi dies in the first month of life and 80 percent of these deaths are due to prematurity, complications during birth or infections such as pneumonia and sepsis, reads part of a report by the United Nations Childrens’ Fund (Unicef) titled Every Child Alive released early this year.
Due to the congestion at Qech, the facility’s 24- bed labour ward is not enough to accommodate the women in need. It has been noted that other patients are sleeping on the floor. The last few weeks, the corridors were closed and acted like a full ward.
Out of the three theatres at this wing, only one is operating against a daily average of 10 emergency situations. This has led to high rates of stillbirths and neonatal deaths.
Health workers assigned to this ward, who we have spoken to indicate that they are overwhelmed and at the same time frustrated with the system because patients are not assisted accordingly due to lack of essential medical supplies and equipment.
The congestion is also threatening lives of women with gynaecological issues and cervical cancer who also need to undergo an operation (elective procedures). They have been put on the waiting list and it is not known when they will be attended to. The facility is also hit by shortage of anaesthetists.
According to The Daily Times much as the ward is always having this pressure, this situation has been perpetuated by the closure of Limbe Health Centre’s maternity wing which is under renovation. The health facility delivers 10 to 15 babies per day.
District Health Officer (DHO) for Blantyre Dr. Gift Kawalazira confirmed that the closure of Limbe Health Centre’s maternity wing early this month has had a great impact on QECH.
“We opened an extra maternity wing at Bangwe Health Centre but the women don’t want to go there. They don’t want to walk to the facility because it’s not easily accessible. But we are concerned with the congestion that this is causing at Qech,” he said, adding that Limbe Health Centre may be opened at the end of this week.
The DHO said the women are not restricted to go to Bangwe but they may also go to other primary health facilities: “this is also becoming a cost on us as we now have a standby ambulance at Qech, which is taking some women to Bangwe.”
Ministry of Health and Population spokesperson, Joshua Malango, said the government noticed that the elevator had outlived its lifespan and already released K120 million for the procurement of the new elevator.
Malango said the process of procuring the new elevator has been finalised and what remains is for it to be moved from China to Malawi, a process that may take weeks.
“But in the meantime, we have employed some porters to be carrying the patients. These porters are paid by government and not any other guardian. Guardians are not required to pay the porters,” Malango said.
Malawi’s maternal mortality is at 439 per every 100,000 live births. Neonatal mortality is at 27 per every 100,000 live births.
LILONGWE-(MaraviPost)-Malawi on Monday passed the International Monetary Fund (IMF) test as the fund’s executive board approved a new Extended Credit Facility (ECF) worth about K82.3 billion ($112.3 million) to be disbursed over a three-year period.
An official in the IMF Communications Department in Washington DC confirmed the approval of Malawi’s new ECF, a lending arrangement that provides sustained programme engagement over the medium to long-term in case of protracted balance of payment problems.
Reacting to the news, Minister of Finance, Economic Planning and Development Goodall Gondwe last night described the development as having the potential to boost donor confidence and unlock budgetary support.
He said: “We [Malawi] are one of the few countries in the southern African region which has received the [IMF] nod. Among other things, the programme has been looking at government borrowing and management of foreign reserves, areas where we have done well.
“We know we are entering a difficult time when tax collection by Malawi Revenue Authority [MRA] has not been as expected. But the nod in itself is a boost to the donor confidence and we hope it opens more doors.”
Development partners withdrew their direct budgetary support to Malawi in October 2013, citing concerns over poor public finance management in the wake of revelations of Cashgate, the plunder of public resources at Capital Hill through inflated invoices, dubious payments and payments for goods or services not rendered.
Instead, the donors, who contributed 40 percent to the country’s recurrent budget and at least 85 percent to the development budget, opted for off-budget support which they channeled through international non-governmental organisations.
The new IMF programme seeks to achieve and maintain macroeconomic stability and implementation of policies and structural reforms to spur growth, diversify the economy and reduce poverty.
Among other things, Gondwe said under the new ECF, the IMF has pointed out the need for reforms in the State produce trader the Agricultural Development and Marketing Corporation (Admarc) and ways on how government markets its maize. He said government will seriously look into the issue.
However, it remains to be seen how Lilongwe will sustain the programme, especially in terms of containing government borrowing with the impending 2019 Tripartite Elections.
Economics Association of Malawi (Ecama) president Chikumbutso Kalilombe said while the new programme stands to boost donor confidence, there is need for the country to graduate, saying “we cannot continue relying on programmes such as these to grow”.
He said: “Indeed, government and policymakers need to revisit how they market their maize as it doesn’t really explain how the previous maize it bought will be marketed to date.
“And, at the same time, Admarc had a bailout of about K45 billion, meaning it was failing to service its debtors. This calls for reforms and we have been talking about this as Ecama.”
In an earlier interview, IMF resident representative Jack Ree told Business News that with this programme, Malawi will not only be able to manage its debt sustainable but also lock in a new trend of high growth and low inflation with strong macroeconomic policies.
The IMF recently trimmed Malawi’s gross domestic product growth forecast for 2018 to four percent against government’s forecast of 4.5 percent.
Malawi’s last ECF programme valued at US$156.2 million expired in June 2017. The facility was approved in 2012 during the leadership of former president Joyce Banda and was meant to cushion Lilongwe from economic shocks such as dry spells and floods.
Recently, the World Bank cast doubt on providing budgetary support to Malawi during the 2018/19 financial plan, which according to Secretary to the Treasury Ben Botolo, would be pegged at less than K1 trillion from K1.3 trillion the previous year.
The High Court Judge, Redson Kapindu, has reserved his ruling on whether to grant bail to murder suspect, Misozi Chanthunya, or not until further notice.
Earlier, the bail hearing was adjourned to Monday because there were some anomalies on the affidavits by the applicant which were corrected and presented in court.
Lawyer representing Chanthunya, Chrispine Ngunde told the court that his client should be granted bail based on three major reasons.
“Chanthunya has been in custody for six years and four months since he was arrested in 2012 in South Africa, that is a long time and he needs to be granted bail,” he told the court.
Ngunde added that he did not escape to South Africa after his warrant of arrest was issued but left for Zambia on August 19, 2010 after the alleged incident had happened on August 4, 2010 and that it was before the warrant of arrest which was issued on September 21, 2010.
However, Ngunde, who was not available for interviews as advised by his client, observed that this being the case, there is no evidence that he fled to South Africa from Malawi as in that he was escaping justice.
He said Chanthunya did not come back home voluntarily but he came back under the rule of law and argued that it could be difficult for him to escape from facing trial.
But, Senior State Advocate, Pilirani Masanjala, said it was not necessary for the court to release Chanthunya on bail arguing that he will take plea soon.
“Chanthunya is expected to enter plea on May 31 and that is just soon, therefore, as State, we think it is not proper that he should be granted bail,” he said.
Masanjala, also said Chanthunya was a flight risk and there was no guarantee that if he was released on bail, he would appear for trial.
Justice Kapindu adjourned the case until further notice to rule on the application.
Trade unions have intensified pressure on Parliament to reject the proposed changes to the Labour Relations Act, 2007.
The dispute over the proposed changes took centre stage during Tuesday’s Labour Day celebrations at Uhuru Park, Nairobi.
Union leaders said the proposals in the Statute Law (Miscellaneous) Amendment Bill 2018 sponsored by National Assembly Majority Leader, Aden Duale, violate workers’ Constitutional rights and vowed to fight them.
The proposals introduce an amendment to the Labour Relations Act, 2007 which, if adopted, will safeguard the provision of essential services during industrial action.
The Central Organisation of Trade Unions (Cotu) and the Kenya National Union of Teachers (Knut) also oppose the proposed changes to the National Social Security Fund Act, 2013, saying it is a veiled attempt to kick Cotu and Federation of Kenya Employees (FKE) out of the fund’s board.
But in a statement, Mr Duale put Cotu boss Francis Atwoli on the spot, saying he must explain his continued stay on the National Social Security Fund (NSSF) and National Hospital Insurance (NHIF) boards.
Mr Duale, who was responding to Mr Atwoli’s assertions that he was being used to undermine workers’ rights, said Atwoli would be invited by Parliament’s Heath and Labour committees to argue his case.
Earlier, Mr Atwoli had exuded confidence that MPs will oppose the changes. He said Article 41 (1)(d) on Labour Relations in the Constitution allows workers to go on strike while paragraph (5) states that every trade union, employers’ organisation and employer has the right to engage in collective bargaining.
If passed, the amendments to the Labour Relations Act, will also ensure that during industrial action, essential service providers ensure that operations continue.
It targets sectors providing crucial services such as electricity, water, sanitation telecommunications, firefighting, air navigators, health, fuel distributors and port workers.
The Bill proposes a Sh500,000 fine or three months’ imprisonment for any union official if the strike he or she has called disrupts essential services.
In addition, unions will be required to report any dispute to the Labour Cabinet Secretary and wait for 21 days before taking any action. If there is no resolution, they will give the CS a seven-day notice, with a schedule indicating who will be on duty to ensure that operations continue during the strike.
Knut Secretary-General Wilson Sossion described the bill as “a savage attack on workers rights” addin that itmust be subjected to public participation.
And Meanwhile, the Executive Director of the Federation of Kenya Employers, Ms Jacqueline Mugo, said the exclusion of employers and workers’ representatives from tripartite labour boards does not portend well for labour relations in the country. for the country.
“In our view, the amendments proposed are not miscellaneous but fundamental. These proposed changes have a wide ranging impact on the management of the labour market and therefore need proper stakeholder consultations and engagement in line with the spirit of our national Constitution and International Labour Organization Conventions.
Essential services according to the Bill
-Health care services.
-Air navigational services.
-Supply and distribution of fuel, petrol, oil, power and lighting services
-Marine and port navigational services.
The extent to which land initially intended for forests has been encroached for human use has been exposed in a report, with authorities being asked to take action against those responsible.
Details previously contained in various reports, plus fresh revelations about the state of Kenyan forests, have been collated in one unit by a task force formed in March to enquire into logging in Kenya.
The information is contained in the document titled “A report on Forest Resources Management and Logging Activities in Kenya”, which a 15-member task force presented to Deputy President William Ruto and Environment Cabinet Secretary Keriako Tobiko on Monday.
The task force highlights the encroachment of the Mau Forest Complex that has been ongoing for the past 25 years, noting that it seems there has been no change since a survey was done in 2001 when humans had eaten into 61,587 hectares of the key resource.
The document says at least 2,436 hectares of the Mau have been illegally allocated to schools, police stations, churches among other establishments. “The land allocated for these public utilities and private developments is still gazetted as forest reserve,” it states.
Among the most flagrant cases is that of land allocated to Arama Secondary School in Lembus forest on the eastern side of the complex, says the report.
The size of land allocated, the team says, was in excess, “providing opportunities for land grabbing”.
“The forest land allocated to Arama Secondary School is as large as 80 football pitches,” says the report.
The report also points out at Mt Elgon Forest where a number of people were settled under the government’s Plantation Establishment and Livelihood Improvement Scheme, saying it went awfully wrong.
“The poorly planned Chebyuk excision, with an original extent of 3,686 hectares, more than doubled to 8,700 hectares due to encroachment that was subsequently formalised as Chebyuk II and Chebyuk III settlements. Further encroachments are now forcing the government to create Chebyuk IV settlement,” says the report.
Then there is Kakamega forest which had lost 573 acres by the time a survey was done in 2007. Part of it was 443 hectares mostly taken by Shikuza Prison.
The task force found that the Leroghi Forest Reserve in Samburu County has seen over 600 households establish manyattas and settle in the forest.
“From presentations made during the public hearing held on April 13, 2018, it appeared that the local elected leaders have encouraged the squatters to stay inside the forest,” the document states.
It adds: “In the Ndotos Forest Reserve in Samburu County, pastoralists have also settled near the top of the mountain forests, leading to degradation and soil erosion.”
While receiving the report, Mr Ruto said environment issues have not only become national but also an international concern that calls for “coherent and punitive measures” to tame degeneration.
“The report’s recommendations will be implemented. I appreciate the fact that some decisions therein would be pretty difficult to make, but they will have to be done,” said the DP.
Going forward, Mr Ruto said the government may employ the services of the National Youth Service and the Kenya Forest Service to replant indigenous trees for at least three years “to help our forest cover regenerate”.
The implementation matrix of the report is expected to be presented to the President in 10 days’ time.
There were also more alarming statistics raised during the hearings of the team that was chaired by Green Belt Movement chairperson Marion Kamau.
“Enosupukia Forest (in Narok County) was 7,941 hectares in the 1980s and has lost 98 per cent of forest cover due to encroachment and agricultural expansion. The current forest cover stands at 183 hectares,” the Kenya Water Towers Agency told the team. “Marmanet Forest (in Laikipia County) was 30,488 hectares in 1990. By 2010, the forest had lost 12,459 hectares of its cover.”
Settlement of people in the Muchene corridor, linking Mt Kenya to Imenti Forest, the team says, has driven away elephants and increased human-wildlife conflict. It has also been blamed for drying up of rivers and streams.
The task force also questions the manner in which the KFS has awarded timber logging licences to various firms in the past.
Until 2016, the report states, there was a prequalification process for the saw millers where they could, among other requirements, pay between Sh30,000 and Sh80,000 to operate.
But last year, the process was changed through a communication from the KFS board of management and henceforth, millers could be selected by direct allocation.
“Direct allocation is prone to abuse and several ‘saw millers’ have already been brought on board or added into the prequalification list without following due diligence,” says the team.
The consequences of the reducing natural forests, says the taskforce, are dire. They include the reduction of large mammals.
“A 2016 intensive ground survey revealed that there is no sign of large mammals in 17 of 22 forest blocks,” says the report.
Settlement of people in the Muchene corridor linking Mount Kenya to Imenti Forest, the team says, has led to elephants exiting the forest, increasing human-wildlife conflict.
“Over the past two years, 10 farmers have been killed by elephants around the Imenti forest,” the report says.
The encroachment into forests has also led to the drying up of rivers and streams.
“The flow of the Sondu River, for example, has become more irregular making the Sondu-Miriu hydro power plant running at lower capacity in the dry season,” the report says.
Besides encroachment into forests, the taskforce also questions the manner in which the Kenya Forest Service (KFS) has awarded timber logging licences to various firms in the past.
Until 2016, the report states, there was a prequalification process for the saw millers where they could, among other requirements, pay between Sh30,000 and Sh80,000 to operate.
But last year, the process was changed through a communication from the KFS board of management and henceforth, millers could be selected by direct allocation.
PRONE TO ABUSE
“The direct allocation process is prone to abuse and several ‘saw millers’ have already been brought on board or added into the prequalification list without following any due diligence,” says the taskforce. “By July 2016, the prequalified saw millers were 850 after due diligence. This number has since increased to the current 898 saw millers.”
It recommends that no more millers should be added before an appropriate forest stocks disposal procedure has been developed.
Crisis looms in Baringo South sub-county with more than 10,000 people at risk of being displaced from their homes as the volume of water at Lake Baringo increases at an alarming rate following the heavy rains pounding the region.
The most affected is Ilchamus ward where more than 10 schools are yet to reopen for the second term after their classrooms were submerged in the rain water.
“We fear learning will not take place anytime soon. The Ministry of Education should put in place measures to ensure that learning is not disrupted,” said Amos Olempaka, a youth leader.
In Nyanza, the disaster preparedness team has issued an alert over the rising levels of water in the rivers and Lake Victoria and urged residents to remain vigilant.
Already, six people have lost their lives as floods continue to wreak havoc in the region.
Tuesday, the disaster preparedness team in Kisumu noted that levels of water in Lake Victoria was rising as rains continue. This had led to the water moving off shore destroying crops and some houses.
Nyanza region police boss Leonard Katana yesterday said they have received reports of rising water levels in River Nzoia that could be disastrous and urged residents to move to higher grounds.
“The water levels in River Nzoia could be disastrous and residents of Nyadorera, Harambee Budalang’i and Usonga should take caution,” Mr Katana said.
Meanwhile, thousands of students in Tana River County did not reopen school due to floods.
The more than 24,000 learners stayed at home and others in camps after floods swept away some classrooms.
According to the County Steering Group report, about 70 schools across Tana River have been affected, 16 of them being secondary schools.
On Tuesday Deputy President William Ruto pledged support for Tana River County in a meeting with Governor Dhadho Godhana.
In a statement, Mr Ruto said, “the government will see rehabilitation of roads and infrastructure that has been affected by floods in Tana River County and also ensure return to normalcy, including reopening of schools.”
Hardly a week after more than sixteen families were forced to relocate to Moi Ndabi in Naivasha following development of scary cracks in the area, residents have also been hit by floods.
Traders operating within the area have been forced to close down their businesses as a result of flooding.
Meanwhile, hopes of finding alive four people who drowned at River Enziu in Kitui County two weeks ago have faded as rescue teams concentrated on searching for their bodies along the banks.
The four who were travelling in a Toyota Probox went missing on April 16, after their car was swept away by the swollen river.
After days of long wait, efforts to retrieve the car were frustrated after the truck hired by the families to scoop the sand ran out of fuel leaving the relatives more desperate.
Separately, Nairobi Senator Johnson Sakaja and his Makueni counterpart Mutula Kilonzo Junior have sponsored a bill on disasters management, intended to improve on the country’s response to calamities.
The Disaster Risk Management Bill 2018 will harmonise disaster management at the national and county levels should it become law.
The bill proposes the creation of a disaster management agency dubbed National Disaster Risk Management Authority whose leadership comprises officials from the national and county governments as well as relief agencies.
They will coordinate the prevention, preparedness and mitigation of disasters.
The two senators want the authority to be the central agency in managing disasters in the country.
Balambala MP Abdi Omar Shurie, has also called for compensation to thousands of people affected by recent floods, saying people have lost source of livelihood as their farms have been submerged in raging floods.
He said big farms in his constituency that supplied products to Garissa town have been submerged and crops washed away.
Farmers along River Tana are also counting losses since the start of heavy rains and matters have been worsened by recent floods.
Reported by Wycliff Kipsang’,Florah Koech, Barnabas Bii, Justus Ochieng’, Rushdie Oudia, Barrack Oduor, Elisha Otieno, Benson Ayienda, Stephen Oduor, Macharia Mwangi, Kitavi Mutua, Pius Maundu, and Abdimalik Hajir
Suspects are walking free, thanks to blunders by magistrates and prosecutors, a review of various cases has shown. The most common errors are magistrates’ failure to indicate the language to be used throughout the trial, and charge sheets citing the wrong sections of the law.
Citing the incorrect section of the law and Penal Code renders the charge defective and non-existent.
Other notable mistakes are magistrates’ failure to admit the suspects’ defence before convicting them, relying on single witnesses, and relying on contradictory evidence.
However, it is notable that Justice Francis Gikonyo of the High Court in Meru recently ruled that there is no prohibition against convicting a suspect on the evidence of a single witness, if the evidence is sufficient.
A case in point is where a villager, Mugo Ndegwa, imprisoned for 20 years for attempting to defile a nine-year-old girl, was last month released by the High Court in Nyeri after it found out that the trial magistrate had rejected his defence.
Justice Abigail Mshila found that during the proceedings, Mukurweini Principal Magistrate, Mr Victor Chianda, had failed to record crucial procedures, as required.
Explaining the legal blunders, lawyer Wahome Gikonyo said that the charges levelled against Mr Ndegwa did not conform to the law.
“The charge sheet lacked words like ‘committing’, ‘unlawfull’y and ‘intentionally’. Lack of such words render the charge fatally and incurably defective. A charge for any criminal offence must be specifically stated and communicated to the suspect,” he said.
A trial court must comply with sections of the Criminal Procedure Code, specify the offence, and cite the section of the law in the sentence.
“In a defilement case, a trial court must record the questions a minor is asked, as well as their answers, prior to the admission of the evidence. It must be recorded whether the child appreciates where she is, appreciates the responsibility and duty to tell the truth and the sufficiency of her intelligence,” said the lawyer.
He added that the court must also record the opinion formed regarding whether the minor understands the nature and solemnity of the oath, and also whether it is satisfied that the child can give sworn evidence.
“All these must be recorded so as to enable an appellate court to arrive at a decision on whether this important factor was rightly decided. The failure to record the terms of satisfaction is fatal to the conviction,” Mr Gikonyo added.
The test conducted on the child must be of the required standards. “The test is mandatory when a minor is called to give evidence. In its absence there is no evidence upon which a conviction can be based,” he said.
In the Ndegwa case, he noted, the magistrate failed to observe all the above steps, including failing to record the procedures and the language used in the trial.
In another case, a man and a woman condemned to death for robbery with violence escaped the hangman’s noose courtesy of blunders by State prosecutors.
Mercy Muthoni and Joseph Muiruri Nderitu were convicted of robbing Weru Murakaru of a mobile phone, Sh18,000 cash and a Toyota Succeed, all valued at Sh722,500. They committed the offence on September 12, 2013, at Lachuta farm in Gatarakwa, Nyeri County.
Judge Rachael Ng’etich freed them after finding that the trial court relied on a single witness, and that there were discrepancies in the description of the stolen motor vehicle.
“The complainant admitted that no identification parade was conducted. He also admitted that it was the first time he was seeing the suspects. The trial court erred in believing prosecution evidence on identification by recognition yet the appellants were not known to the complainant before,” said Justice Ng’etich.
It was also noted that the police made no enquiry regarding the ownership of the vehicle while the witnesses gave different registration numbers.
“The prosecution never amended the charge, neither did the complainant avail ownership documents,” the judge said.
Mr Gikonyo said the trial magistrate, Christine Wekesa, erred in condemning the suspects to death when the evidence had glaring contradictions.
On the issue of identifying witnesses, the lawyer said the convicts were condemned after being identified in the dock.
“It is trite law that description should be given at the earliest opportunity. In this case the complainant gave the descriptions after the suspects were arrested, which is the reverse of what should have happened,” Mr Gikonyo said.
In Nakuru, High Court Judge Maureen Odero quashed a 25-year jail term imposed on a villager, Wanyaga Githinji, noting that the prosecution had failed to prove the victim’s age.
Githinji had been convicted for defiling a 14-year-old girl in Molo.
While faulting the trial court, the judge substituted the sentence with 10 years’ imprisonment for the offence of committing an indecent act.
Ms Odera ruled that age of the victim of a sexual assault under the Sexual Offences Act is critical because defilement offences of are categorised based on the age of the victim.
In her evidence, the complainant had said that she was 13 years old.
Usually, age is proved by presenting a document such as a birth certificate, a baptism certificate or a school identity card.
But in the absence of such proof, Justice Odera noted, the evidence of a parent and/or guardian is sufficient.
In Githinji’s case, no documentary proof was produced to back the complainant’s claim that she was 13, and neither of her parents testified.
Consequently, Ms Odera said, there was no evidence to prove the complainant’s age.
Meanwhile, Nyeri High Court Deputy Registrar Ms Irene Muthee absolved the magistrates from wrongdoing, saying they pass judgments based on the evidence available.
“It is the evidence that negates the accused person from the offence. If the case is not proved beyond reasonable doubt, the accused is set free,” she added.
She advised magistrates to read the decisions of the High Court and the court of Appeal — which she said had more records than those at magistrates’ courts — to find out where they had gone wrong in order to avoid repeating mistakes.
Former US President Theodore Roosevelt once remarked that to educate a person in mind and not in moral is to educate a menace to society.
On Sunday, minors were arrested while on a drinking spree in a Taita bar. In 2015, more than 500 students aged 12 to 18 were reportedly found smoking bhang, chewing khat and engaging in immoral activities.
The bizarre and abhorrent acts, while they speak volumes about juvenile delinquency in our society, are a tip of the iceberg.
Paradoxically, although such ugly and ungodly incidents have provoked an angry reaction from Kenyans, the vices continue to bedevil our society.
Reading between the lines, methinks our society is going to grapple with moral decadence for a long time to come.
It is highly regrettable that the mainstream media is awash with abhorrent acts such as paedophile, incest, bestiality, drug and substance abuse, as well as infidelity, just to mention a few.
As the saying goes, an apple does not fall far from the tree. Our children have propensity to experiment on what they see older people doing.
Worse, immoral acts such as debauchery and licentiousness seem to be deeply entrenched in our society.
It is high time parents and guardians took their responsibility of inculcating positive moral value to their children seriously.
A stitch in time saves nine.
Joseph G. Muthama, Kiambu.