By Kamau Muthoni
Incarcerated Catholic priest Guyo Waqo Malley is back in court seeking to outlaw a law which gave him away for the murder of a colleague working in Isiolo.
Father Guyo alongside Adan Ibrahim Mohammed, Mohammed Molu Bagajo, Roba Balla Bariche and Mahati Ali Halake are serving time at Kamiti Prison after they were sentenced to death in 2014 for the murder of Father Luigi Lucati.
Father Lucati was killed on July 14, 2005. Their jailing followed a confession by Isaack Abdi Mohammed on how the plot to eliminate Lucati was hatched, failed several times and finally succeeded.
During the trial, the court found the four planned and actively participated in the murder of the Italian priest.
Six years into their sentence, Guyo, Mulo, Roba and Halake have filed a new case before the High Court arguing that confession rules are not applicable to trials in Kenya and.
According to the four, the Out of Court Confessions Rules, 2009, were passed by Parliament without consultations and should therefore be declared unconstitutional.
Spilled the beans
Ali spilled the beans, giving away the convicted priest and his accomplices in a video confession before Justice Weldon Korir who was in 2005 serving as a magistrate in Isiolo.
In their new filing, the four say the confession law is against the right to an accused person to remain silent and not to be forced to self-incriminate.
“It is apparent that in the circumstances that the taking, recording or admission of out of court confessions would be a gross violation of an arrested or an accused person’s rights to remain silent and not to be compelled to make a confession,” they argue in their case filed before High Court judge Anthony Murima.
They argue that the rules are inconsistent with the Criminal Law Amendment Act 2003 and which spell out that confessions or any admission to guilt by an accused person cannot be used against such person unless it is admitted before a court.
The four want the court to declare that the confession by Ali was against their right, hence their trial and conviction was unfair.
“The petitioners pray for a declaration that the confession evidence relied upon to found the conviction of the petitioners should be excluded under Article 50(4) of the Constitution of Kenya, 2010 as the admission rendered their trial fatally unfair,” they argued adding that the High Court had earlier directed the Attorney General to relook the Evidence Act in a bid to make amendments.
The Director of Public Prosecutions Noordin Haji is however opposed to the case and wants the court to dismiss it. According to Haji, the new case amounts to re-opening the criminal trial and would amount to the judge supervising his colleague.
He said that they had initially challenged the admissibility of the confession before the trial court and which then High Court judge Jackton Ojwang (now retired) dismissed their application and ordered the criminal case to proceed.
After the court sentenced Waqo, Mulo, Roba and Halake to death in 2014, they filed an appeal challenging the verdict. The appeal has not yet been heard.
Father Lucati died when a bullet entered through the right side of the shoulder, tore through the neck, shattered his jaw bones, and exited on the left side of his chin.
Former government pathologist John Njue told the trial court that the killer bullet must have been fired from a powerful gun. The priest died from a single shot.