Death Sentence is Inconsistent With the Constitution – Supreme Court

Kenya’s Supreme Court has referred a case challenging the constitutionality of the death sentence to the High Court for review.

According to the court, life sentence has not been defined in Kenyan law.

The Judges argued that it is the legislature and not the judiciary that is tasked with the requirement of providing the legal framework of this law. Thus, the judges ordered that the judgment be placed before Speaker of National Assembly for any necessary amendments to the law.

Justice Njoki Ndung’u declared section 204 of the penal code inconsistent with the Constitution.

The Penal Code, which is the main penal law, prescribes mandatory death sentence for murder, treason, robbery with violence, attempted robbery with violence and administration of unlawful oaths to commit capital offences.

Besides these Penal Code offences, the International Crimes Act (2009) prescribes the same penalty that is applicable for murder for the crimes of genocide, crimes against humanity and war crimes, if intentional killing forms the basis of the offences charged.

This means that for as long as the Penal Code prescribes death penalty for murder, the penalty for these international crimes is death if intentional killing forms the basis for the crimes charged.

Majority of death sentences meted out in Kenyan courts follow convictions for murder, robbery with violence and attempted robbery with violence. Charges of, and convictions for, the other capital offences are very rare or unheard of altogether.

The judges, however, noted that their decision does not outlaw the death penalty.

Katiba Institute, an institution that promotes the understanding and implementation of Kenya’s Constitution is agreeable with the court’s findings that mandatory death penalty is unconstitutional for the following reasons.

“The mandatory death penalty violates the right to fair hearing under Article 50 of our Constitution. It also takes away the discretion of a judge who is allowed by law to consider mitigating circumstances.”

“What this means is that, when found guilty, a judge is allowed to consider some circumstances that may cause a lesser punishment to be issued.However, the death penalty is mandatory, meaning it is the only penalty that can be given if found guilty,” Katiba Institute.

The Kenyan Section of the International Commission of Jurists also observe that “The omission to specifically note death penalty as an exception to the right to life is a significant departure especially when considered in conjunction with other provisions of the Constitution 2010 such as those touching on human dignity, equal protection of the law, the rights of detained persons, the prohibition of cruel, inhuman or degrading treatment, and the limitation of constitutional rights.”

Death row convicts Wilson Thirimbu Mwangi and Francis Karioko Muruatetu who have been in jail since 2003, petitioned the Supreme Court for a retrial and wanted the court the mandatory death penalty to be abolished.

The two and five others were handed the sentence for the murder of businessman Lawrence Githinji Magondu.

The Kenya National Commission on Human Rights (KNCHR), ICJ Kenya, Legal Resources Foundation, Katiba Institute and the death penalty project were amicus in the case.

Kenya has not executed anyone since 1987 however; the courts still condemn convicts to death, a move that has been condemned by Amnesty International.

The last execution in Kenya took place in 1987 when August 1, 1982, coup plotters Hezekiah Ochuka and Pancras Oteyo Okumu were executed following a court-martial verdict. Capital Punishment has been practiced in Kenya way before independence.

President Mwai Kibaki, on February 25, 2003, commuted to life the death sentences of 195 prisoners, and released 28 others who had already served 15-20 years and had a good conduct record.

On March 10, 2004, he announced that President Kibaki had commuted all death sentences. According to government statistics, there were 2,618 death row inmates in Kenya up to October 2003.

The Cotonou Declaration of 4, July 2014, made in the Republic of Benin, called upon states to:  adopt the Additional Protocol to the African Charter on Human and Peoples’ Rights on the Abolition of the Death Penalty in Africa; African States that have not yet done so to consider abolishing the death penalty statutorily or constitutionally, and to consider acceding to or ratifying the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty and urged legislators in Africa to review their national laws and enact legislation abolishing the death penalty and to support the ratification of the Additional Protocol to the African Charter on Human and Peoples’ Rights on the Abolition of the Death Penalty in Africa.  

Kenya has been a party to the International Covenant on Civil and Political Rights (ICCPR) since 1972, and also ratified the African Charter on Human and Peoples’ Rights in 1992 and the Protocol to the African Charter on the Establishment of the African Court on Human and Peoples’ Rights in 2004.

But, it has neither signed nor ratified the First Optional Protocol to the ICCPR allowing for the right of individual petition nor the Second Optional Protocol to the ICCPR aiming at the abolition of the death penalty.