Free at Last but He Can’t Go Home

Nairobi — For thirteen years Mr Pharis Mbugua has been in jail for a murder he does not remember committing and just when the court was ready to release him, his family now says, no way. There is neither dispute that he killed his father nor any doubt that he is insane but Mr Mbugua is now at the mercy of the President who is to intervene in the case.

The court was ready to issue a non-custodial sentence — where the accused would go back home but be under the constant watch of probation officers — but the family insists they are uncomfortable with his return. They do not feel safe. According to the probation report the family says: “We are yet to forgive him for killing our father and since he is still insane he may be a threat to the neighbours.”

The report says that a non-custodial sentence would be ill advised since his siblings have since moved out and started their families. Mr Mbugua, now 38, can only go back to his 83-year-old mother who cannot take care of him. His aged mother fears that she may be blamed if her son hurts another person in the neighbourhood.

High Court Judge Fred Ochieng tends to agree and has now pushed the case to President Mwai Kibaki for directions. The judge will be writing to the head of state to give directions on the punishment to be accorded the accused. Mr Mbugua is alleged to have killed his father on February 27, 1997, at Gathanji village, Kiambu District.

The controversy whether Mr Mbugua was fit to stand trial began in 2004. Four judges ordered he be examined to determine if the trial should proceed. Medical reports by four different doctors brought even more confusion about Mr Mbugua’s mental status with two examinations showing he was fit to stand trial and two others saying he was not. Medical reports also indicated he was admitted to hospital on September 19, 1997, suffering from a mental illness, months after the alleged offence.

Intention to kill

Mr Mbugua’s lawyer, Ms Claire Nanjala, said evidence produced in court showed the accused had no intention to kill. A witness had earlier said Mr Mbugua was close to his father — and so did his mother and brother.

A doctor said he was behaving like a six-year-old and his condition could not be treated. Throughout the court sessions, Mr Mbugua, who said he does not remember killing his father, constantly smiled and adjusted his red tie, seemingly oblivious of the grave charges he was facing.

He was tried and found guilty of manslaughter and not murder as he had been charged. In his judgment Mr Justice Ochieng said: “It is clear the accused killed his father by striking him with a panga (machete) but considering medical reports which showed that he was insane he could not have been aware of his actions.”

According to Mr Justice Ochieng, the prosecution did not prove that the accused committed the offence out of malice even though all facts indicated that Mr Mbugua had killed his father. Last year Mr Mbugua’s case came into the limelight when the judge asked the prosecution to explain how a man charged with murder and whose medical reports indicate he is insane should be held accountable for his actions.

“It is impossible for an insane person to formulate malice which is a key ingredient when it comes to the offence of murder,” he had earlier said. The prosecution wanted the accused to be found guilty but insane, sparking debate on how an insane person can be guilty of an offence he probably does not even know he committed.

Mr Justice Ochieng had also argued that though the law allowed for someone to be found “guilty but insane” it was a contradiction. “The intention to kill is formulated in the mind. So if one is mentally sick, how can he formulate the intention? The accused in his evidence said he does not even remember killing his father,” said the judge. Mr Mbugua will now remain in custody until the President responds to the letter and only then will he know where his fate lies.

-Daily Nation