NAIROBI, KENYA – On May 26, a 78-year-old man named Michael left death row – raising his frail arms in a sign of victory as he slowly but joyfully walked through the Nairobi prison's brightly painted front gates and greeted his family. Michael has spent the past 18 months in prison after being charged with and convicted of Robbery with Violence, a crime that carries the death sentence. But yesterday, he was granted bail and told he was free to leave – the first time ever in Kenyan history that someone convicted of a capital offense has been freed on bail while an appeal is pending, and a sign of hope for a man that IJM attorneys believe to be completely innocent of the charges against him.
For 13 years, Michael served as night guard for a prominent Nairobi resident and UN Security Officer. Two years ago, while Michael was on duty, armed thugs stormed into the property, forced Michael and other house staff to lay face down the ground and demanded that they surrender their cell phones. The thieves proceeded to rob the home and, in an act of cruel and brazen violence, shot and killed Michael's employer.
After the perpetrators fled, Michael assisted his employer's family in reporting the horrible events to the police, and let the police know the thugs took his phone in the course of the robbery.
Upon returning to work a few days later, Michael found his phone discarded in the bushes on the property. It no longer functioned, and thinking nothing of it, Michael gave the phone to his son, whom thought he might be able to fix it.
In the course of their investigation of the robbery and murder, the police traced Michel's phone – recorded as stolen property – back to him and his son, who had eventually gotten the device working. Michael and his son Joshua explained that they had recovered the phone after finding it discarded on the property. Shockingly, the police arrested them, claiming that their possession of Michael's own phone proved their guilt – not only in only stealing the phone, but robbing the home and committing the murder.
The police conducted no further investigation and obtained no further evidence. The father and son were thrown in prison, charged with a capital offense.
"In Kenya, once the police arrest and charge, no one checks to ensure that they have a genuine basis – not until the end of a trial that will likely take several years to complete," explains IJM Kenya Field Office Director Joseph Kibugu. "All the while, innocent men like Michael and Joshua wait prison. Their families, deprived of their breadwinner, go hungry, may lose their home and can't pay for education."
IJM became aware of Michael's imprisonment early in 2010 and took on his case. IJM attorneys pushed the case through trial, confident that it would result in freedom, like so many others in which IJM had intervened, as there was literally no case at all against Michael and Joshua.
Eleven months after Michael and Joshua's arrest, the court announced its verdict. In a shocking and confusing judgment, the court set Joshua free, but convicted Michael of Robbery with Violence – a charge that carries the death penalty. "This is so-called 'result-oriented justice,'" explains IJM Kenya Field Office Director Joseph Kibugu. "Someone – didn't matter who – had to pay for the crime. It was Michael."
Michael was put on death row. Without a shred of evidence against him, this 78-year-old man continued to languish in jail. IJM attorneys immediately filed an appeal, but that process will take years – years an elderly man like Michael should not spend waiting in jail – so the team also filed an application for bail pending appeal.
On May 26, 2011, in a precedent-setting decision, a Nairobi-area judge freed Michael on bail – the first time ever in Kenyan history that someone convicted of a capital offense has been granted bail pending appeal, made possible by a provision in Kenya's new constitution. Upon issuing his decision, the justice stated that there was an overwhelming chance of success of the appeal and that keeping Michael in prison would not serve the interest of justice.
The IJM Kenya team celebrates this judgment – not only because of its historic nature, but because it means that this one elderly, innocent father can return to his family with dignity as he awaits his ultimate vindication. Though the fight is not over, a battle has been won.