Thursday, April 19, 2018

But was it desertion?

The long-running Kenya Navy case continues, but now it is in the Court of Appeal. The Daily Nation reports on the latest proceedings on the government's appeal. Excerpt:
The government has asked the Court of Appeal to jail for life 25 naval soldiers who were acquitted for deserting the military ten years ago.

The State, through the office of Director of Public Prosecution (DPP), has said that failure to do so, will cripple Court Martials’ powers to instil discipline in the forces.

The DPP’s office has expressed fears that court martials will be rendered toothless should the appellate court fail to overturn the High Court’s decision that had set the former soldiers free.

“The applicant is apprehensive that if the decision of the superior court is left unchallenged, it will not only set a bad precedent but also curtail the powers of the court martial as a disciplinary mechanism of the military forces,” Principal Prosecution Jami Yamina said.


“It will also visit great uncertainty to the forces as to what constitutes the offense of desertion as opposed to that of absence without leave,” he added.
The central issue is whether the accused were guilty of desertion or merely absent without leave.
The [High Court] judge noted that charges preferred against the soldiers were flawed and that the court martial erred in law and facts in making a determination that the respondents were active in service.

Justice [Martin] Muya also noted that Kenya was not at war when the soldiers left the military.

Justice Muya said that it was not disputed that the litigants wanted to leave the Kenya Defence Forces because evidence adduced in court indicated the former soldiers had initiated a process to leave service.
The Court of Appeal hearing had to be adjourned because the DPP had neglected to serve the appeal on the convicted sailors, as report here.

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