A Mombasa court has acquitted Kilifi Deputy Governor Gideon Saburi of charges of willfully exposing himself in public while suffering from Covid-19 without taking proper precautions.
Mombasa chief magistrate Edna Nyaloti ruled that by the time Mr Saburi was being charged, Covid-19 had not been declared an infectious disease.
The accused is alleged to have committed the offence between March 6 and 22 last year within Kilifi County.
Mombasa chief magistrate Edna Nyaloti ruled that by the time Mr Saburi was charged, the Cabinet Secretary for Health had not declared in the Kenya Gazette that Covid-19 is an infectious disease.
The court noted that Mr Saburi allegedly committed the offence on diverse dates between March 6 and 22 last year, while Covid-19 was officially Gazetted as an infectious disease on March 27 under Section 17 of the Public Health Act.
In her ruling, Ms Nyaloti said the CS was supposed to coordinate with the Attorney General, to urgently amend the Public Health Act, to include Covid-19 as an infectious disease.
“Article 50 of the constitution is very clear that a person shall not be charged, prosecuted or convicted for an act that at the time it was committed was not an offence in Kenya or crime under international law,” said Ms Nyaloti.
The magistrate said President Uhuru Kenyatta issued an Executive Order, but the CS failed to trigger an amendment of the Public Health Act.
The court also said that it was satisfied that the AG’s office and the Ministry of Health has adequate financial and human resources to amend the Public Health Act.
Ms Nyaloti further said that the World Health Organization (WHO) declared Covid-19 pandemic on March 11, hence the Executive Order and the (WHO) declaration ought to have made the CS to urgently coordinate with the AG’s office and the Law Reform Commission to amend the Public Health Act.
The magistrate said the court takes judicial notice that Covid-19 is a pandemic affecting the world, whose effects to the lives of people and the economic growth are devastating.
She, however, said that the rule of law must be observed and respected.
In his application through lawyers George Kithi and Clifford Tollo, Mr Saburi had urged the court to issue a declaration that as at the time he was being charged, the offence disclosed in the charge sheet did not exist.
Mr Kithi argued that the charge sheet did not disclose an offence under the law and wanted the court to dismiss it.
The lawyer said that the Deputy Governor was arrested and charged without breaching any known law, and that the charges facing him were a nullity, as they were not sanctioned by the law.
Senior Assistant Director of Public Prosecutions Alloys Kemo had opposed the application, saying it was misleading for Mr Saburi to claim Covid-19 was not a disease known in law and science, between March 6 last year.
Mr Kemo also submitted that the Public Health Act makes provision for securing and maintaining health.
As at the time Mr Saburi made the application to have the charges against him dismissed, none of the prosecution witnesses had testified.
