By Shadrack Muyesu
On February 8 2018, the Chief Magistrate’s Court at Kiambu delivered a ruling in R vs Michael Ngobe Mugo, Traffic Case No 464 of 2018, in which it stated, inter alia, that driving under the influence of alcohol per se does not amount to an offence. The Court interpreted Section 44 of the Traffic Act to mean that for the offence to be established, the judicial forum must be certain that the driver was under the influence of drink or a drug, and that as a result of the drink or drug s/he was incapable of having proper control of the vehicle.
The facts in the matter were that on May 23, 2018 at about 8pm along Banana-Ruaka road, being the driver of a motor vehicle, the accused person drove the said vehicle while under the influence of alcohol (0.502 mg against the required level of 0.35mg) thus not having proper control of the motor vehicle.
Acquitting the accused, the learned magistrate found that although the fact of the accused being drunk at the time of the arrest was not in contest, there was no proof that he was not in proper control of the vehicle or was affected by the drink. In so doing he relied on the decision in ‘Benson Mutwiri v Republic’ (2017) eKLR where Muchemi J stated held that to convict on an offence under Section 44 of the Traffic Act, control of the vehicle, or lack of it, is crucial.
The decision is a curious one. Not only does it allow drunk driving but it casts into further doubt the legality of the alcohol breathalyser, the infamous Alcoblow. This can be seen in the contempt with which the Court regarded evidence produced by the Prosecution that the accused had exceeded the mandatory alcohol limit.
The Alcoblow is employed under Rule three of the Traffic (Breathalyser) Rules, 2018, which states that no person shall drive, attempt to drive or be in charge of a motor vehicle on a road or other public place if the person has consumed alcohol in such quantity that the blood alcohol concentration in his body is beyond the prescribed limit. Rule Two places the limit at 35 micrograms of alcohol in 100 millilitres of breath; 80 milligrams of alcohol in 100 millilitres of blood or 107 milligrams of alcohol in 100 millilitres of urine. It also defines drunk driving to mean ‘driving, operating, attempting to operate or taking control of a motor vehicle while under the influence of alcoholic drink or a drug to such an extent as to be incapable of having proper control of the motor vehicle.’
The rules themselves exist under the Traffic Act Cap 403. According to Section 44 (1) of the Act, which establishes driving under the influence of drink as an offence,
‘Any person who when driving or attempting to drive, or when in charge of a motor vehicle on the road or other public place, is under the influence of drink or a drug to such an extent as to be incapable of having proper control of the vehicle shall be guilty of an offence and shall be liable to a fine not exceeding Sh100 thousand or to imprisonment for a term not exceeding two years or both.’
Determining the first major war against the Alcoblow, the Court of Appeal in ‘Reminisce Sports Bar & three others vs the Cabinet Secretary Ministry of Transport & seven others’ [2017 eKLR, although upholding the constitutionality of the Traffic (Breathalyser) Rules, 2011, found Rule Three of the 2011 Rules to be in conflict with Rule Two and Section 44 of the Act. In its considered opinion, Section 44 created the offence and as inferior norm, such that Rule Three had to be amended to be in harmony with it or discarded altogether. Unfortunately, the Cabinet Secretary retained the error under Rule Three when he came up with the Traffic (Breathalyser) Rules 2018.
Good or bad law?
Subsidiary legislation aids the interpretation and application of the principle statute. This means that the Court, properly guided, ought to have attempted to reconcile the conflicting positions rather than rush to dismiss Rule Three. If it did so, it would have found that exceeding the prescribed alcohol limit translated to being “incapable of having proper control of the motor vehicle” under Section 44. Indeed, one may argue that having been effected through a policy that received legislative approval, this reconciliation of Section 44 and Rule three captured the intention of the drafters and was therefore legitimate.
On the other hand, considering the presumptiveness of such an interpretation, the decision of the Court of Appeal in Reminisce Sports Bar may well have been a great decision. The proper justification, however, should have been the argument made by Prof Lon Fuller and ably cited by Prof Lonna Lanza-Kaduce and Donna M. Bishop in ‘Legal Fictions of Drunk Driving’. Prof Lanza-Kaduce and Bishop argue that the subjective criteria is one employed without proof; as such it is a fallacy.
‘Another shortcut for evading problems of proof consists in defining the offense of drunk driving in terms of a specified Blood Alcohol Concentration (BAC) usually 10%. Statues which define the offence of drunk driving in terms of the minimum BAC support an inference of impairment and by extension of driving risk. In other words, the logic which supports these statues operates on a conclusive presumption. The conclusive presumption says the presence of Fact X (minimum BAC) is conclusive proof of Fact A (impaired driving), which is false.’
The Court of Appeal ought to have identified Rule Three as a per se provision and, on this fact, declared it unconstitutional on the basis that it rests on a conclusive presumption which relieves the State of its burden of proof. This was the position adopted by the Magistrates Court only falling short of declaring the impugned rule unconstitutional because it lacked such powers. Though arriving at a similar conclusion, the Court of Appeal rejected this argument.