After long court proceedings, the matter was recently settled where Leliman was sentenced to death while the other two police officers were sentenced to a term of 20 to 30 years in prison.
1.0. Introduction
Until the recent ruling of the Willie Kimani case, many Kenyans had forgotten or were unaware of the existence of the death penalty. Research as of January 24, 2023, shows that 43% of the prisoners on death row were not aware of this punishment till the time of conviction.[1] According to Prof. Carolyn Hoyle, Director of the Death Penalty Unit at the University of Oxford, 95% of those convicted of robbery were not aware it was punishable by death and 86% of those convicted of murder also did not know it was punishable by death. This is due to the fact that most countries have abolished the death penalty rule and Kenya itself, although it has not abolished the rule, has not carried out executions for more than three decades.
Of what essence then is a law that has been dead for over 30 years? Whereas Kenya still upholds the death penalty rule it has not carried out an execution since 1987 when Hezekiah Ochuka and Pancras Oteyo Okumu, who were then leaders of the 1982 coup d’état attempt, were hanged for treason.[2] The law in the books remains crystal clear on the offenses that attract the death penalty. The penal code specifically provides for capital punishment on offenses of murder, treason, robbery with violence, and attempted robbery with violence among others. Fantastic! The law in the books has saved itself and provided clearly what ought to be done. What about the Law in Action? Over the years courts have been issuing the death penalty sentence on criminals found guilty of the aforementioned crimes. However, executions have not been carried out on the charged criminals and numerous of them remain on death row awaiting the unfortunate day.
The fact that the criminals live in prisons for years; uncertain of when their time to die will be, is itself tormenting. As Caycio D. Bradford defines it, the prisons remain to be “a graveyard behind high walls far from the eyes of the public.”[3] The state of these prisoners can only be explained by the following two terms; it is either they are waiting to die or they are dying to live, and nothing in between. This affects the psychology of the criminals amounting to cruelty against humanity. Along the same line, the European Court of Human Rights in Soering v UK and Germany (1989)[4] held that; prolonged incarceration on death row constituted cruel, inhuman or degrading treatment. Being a criminal does not take away one’s identity as a human being. Therefore, the state and the law enforcers in Kenya are entitled to protect, fulfill, and promote the rights of every citizen including the prisoners on death row. The mental health status of the criminals should be put into consideration when prolonging the execution of these sentences failure to which, they will remain living bodies with dead souls.
This article proposes that the death penalty law in Kenya should be abolished. This is owing to the fact that it has remained silent for decades and it causes more harm than good to the fellows served with the sentence. Further, it brings nothing but an empty plate on the table of justice. Why say so? The death penalty does not necessarily deter crime. There is no proof of a correlation between the death penalty and the deterrence of crime and countries that still uphold the penalty have not witnessed a decline in crime.[5]
2.0. Kenya as a de facto and not a de jure abolisher of the capital punishment
What would be the best way for a President to exercise the power of mercy other than by the release of prisoners sentenced to life or commuting those on death row to life imprisonment? This has been the way for Kenyan Presidents over the years and especially during public holidays. It all goes way back to the year 2003 when the then vice president, Moody Awori, released more than 20 prisoners convicted for capital offenses.[6] This was followed by his declaration of the intention to introduce a bill in parliament abolishing the death penalty. Awori’s actions and intentions were closely backed up by the then Commissioner of Prisons, Abraham Kamaki, who termed the vice president’s actions as a “historic event.” He further went ahead to say that the death penalty ought to be abolished because it claimed innocent lives.[7] Hon. Kiraitu Murugi, the then Minister for Justice and Constitutional Affairs, to continue with the discussion went forth and stated that; “death penalty being a violation of human rights, would be abolished and death row convicts would soon have their sentence commuted to life…”[8]
In August 2009, the former President of the Republic of Kenya, Mwai Kibaki commuted the death sentence of more than 4,000 prisoners who were then on death row.[9] Additionally, on October 24, 2016, the former president, Uhuru Kenyatta, also commuted death sentences of the prisoners on the nation’s death row[10]. As if the gist is not enough, research conducted by professors from the University of Oxford with combined efforts of the Kenya National Commission on Human Rights showed that majority of members holding honorable positions in the Kenyan judiciary are in support of the abolition of the death penalty law.[11]
To end the discussion in this section without looking into the decision in Francis Muruatetu case would be like throwing a bone without tasting the bone marrow.
The Supreme Court in Francis Muruatetu & Another v Republic [12] held that:
“… The mandatory nature of the death penalty runs counter the Constitutional guarantees enshrining respect for the rule of law. Any court dealing with the offense of murder is allowed to exercise discretion by considering mitigating factors, in sentencing an accused person charged with and found guilty of the offence.”
Further, the court held that section 204 of the penal code was unconstitutional as it contravened Articles 25(c), 28, 48, 50 (1) and 2 (q) of the Constitution.
Following the above factual events, it is wise to conclude that, the law on death penalty only remains in books but far out of practice in the real world. At this point I will echo the words of the Kenya National Human Rights Commission in their position paper on death penalty that; “Kenya has not de jure abolished capital punishment, practice de facto testifies to the presence of an unofficial moratorium on enforcement of the death sentence…”
3.0. A public opinion issue?
The Kenyan government has held the death penalty for so long arguing that the citizens are in support of it.[13] In 2007, the then Kasipul- Kabondo MP, Paddy Ahenda, moved a motion in parliament seeking to abolish the death penalty arguing that no person had been hanged since 1987.[14] However, his attempts bore no fruits as the Members of the Parliament defeated this motion by vote. Moreover, the then Minister for Justice and Constitutional Affairs, Martha Karua went ahead give a speech saying that; the Bomas Constitutional Conference resolved to uphold the death penalty on the grounds that abolishing it would be against the wishes of Kenyans.[15] The question that rises at this point is; is the issue of abolishing the death penalty a public opinion issue?
It is always a headache for policymakers to balance between meeting public expectations and dictates and fulfilling their constitutional obligation to protect, respect, promote and fulfill the right to life and human dignity by abolishing the death penalty. However, the government cannot in any way be justified to perpetuate the violation of human rights reason being that the public dictates do. Its action and policies ought to conform to certain minimum human rights which are unimpeachable come what may.[16] On the matter of public opinion, the South African Constitutional Court in State v Makwanyane & Another[17] held as follows;
“Public opinion may have some relevance to the enquiry, but in itself, it is no substitute for the duty vested in courts to interpret the constitution and to uphold its provisions without fear and favor… If public opinion were decisive there would be no need for constitutional adjudication…”
Further, the United States’ Supreme Court in West Virginia Board of Education v Barnette[18] stated that;
“… One’s right to life, liberty and property, to free of speech, free of press, freedom of worship and other fundamental rights may not be submitted to a vote, they depend on the outcome of no election…”
4.0. Death penalty abolition debate
“Instead of dehumanizing offenders by characterizing them as permanent monsters that should be segregated from others, restorative justice emphasizes each person’s ability to change for the better…”[19]
The Kenya National Commission on Human Rights in their position paper No.2 of 2007 expounded on various arguments supporting the abolition of the death penalty. This article will look on some of the substantive arguments elaborated by the commission and comment in each of them. They include violation of the most fundamental right to life, retribution, inhuman and cruel treatment, the death penalty does not necessarily deter crime.
4.1.0 Violation of the most fundamental right to life
The commission argued that the death penalty is in contravention of the most fundamental right, the right to life. If further went ahead to state that, the hallmark of a civilized society was the acknowledgment of human worth and dignity at the core of which is the principle of sanctity of life, which should be guarded under all circumstances.[20] According to the commission, the protection of the right to life was the duty of both the state and the individual as pledged under the Constitution and other ratified international laws.
4.1.1 Commentary
The right to life is the mother of all other rights, siring, breastfeeding, and nurturing them to be of value. Of what need is the right to liberty or freedom of speech to a dead man? The guarantee of the right to life is the root for the enjoyment of all other rights. The argument above by the commission is in recognizance of this fact and therefore worth the trophy. The death penalty should be abolished as it violates the fundamental right, the right to life.
4.2.0 Retribution
“Every time we execute a member of our community we reinforce the notion that taking a human life is justified to achieve the ends we seek. Moreover… we try to soothe one family’s anguish by killing someone else’s child. Far from solving anything, this only adds pain caused by the initial crime.”[21]
The death penalty advocates would have it that; a person who takes away another’s life should in the same away be extinguished. However, the commission was of the opinion that to support death penalty was to categorically teach that violence and killing is an acceptable way of handling serious crimes.[22] Further, it was stated that upholding the death penalty lowers the standard of the government since it cannot be distinguished from the murderer.
On a different note, the commission argued that the death penalty gives a blind eye on the pain of victim and the suffering that befalls the victim’s family. The murdered person cannot in any way know and appreciate the punishment rendered on the offender. It is also a mere assumption that the family of the murdered person will be satisfied by the execution of the offender, argues the commission. Additionally, the commission found the death penalty to be equivocal as in some cases the death sentence is not proportional to the crime committed. For instance, attempted robbery with violence.
4.2.1 Commentary
The eye-for-an-eye delivery of justice is only a satisfaction of vengeance and not an act of justice. Furthermore, if that was the case why then don’t we punish rape with rape? Or punish an arsonist by burning down their home? It is the view of this paper that the death penalty is irrational and should be used to punish a murderer.
4.3.0 Inhuman and cruel treatment
“The death penalty amounts to torture, inhuman and degrading form punishment…”[23]
The commission stands its ground that the death penalty amounts to cruel, inhuman and degrading treatment contravening Article 25 of the Constitution of Kenya which provides that ‘the right to be free from torture, cruelty and inhuman treatment shall not be limited.’ Further, it violates Article 7 of the ICCPR which provides for freedom against torture and degrading human treatment and the Convention against Torture and other Cruel which Kenya is part of.
4.3.1 Commentary
Evidence has is that in countries like Kenya which are de facto abolitionists, persons sentenced to death live with anxiety with the reality of the roaming death. Such amounts to torture, cruel, and inhuman treatment.
4.4.0 Death Penalty does not necessarily deter crime
In advancing this argument the commission relied on a research conducted by the UN in 1998 with a last update dated 2002 which showed that there was no correlation between the death penalty and homicide rates. This counters the opinion by proponents of the death penalty who argue that the penalty deters crime.
4.4.1 Commentary
The fact that the death sentences in Kenya are handed down it has not deterred commission of crimes to which the penalty applies. The only way deterrence can apply is by increasing the likelihood of detection of crimes. Death penalty itself does not deter crime.
5.0 Conclusion
The ruling in the Willie Kimani case left Burna boy’s song ‘Another story oh’ ringing in my head. This is just another story in the history of death penalty in Kenya. For how long will we have these sentences without a single execution? And for how long will we continue with the mental torture of the prisoners? They sing to the song that freedom is coming tomorrow not certain of what freedom it is exactly. Is it the freedom from the mental torture and anxiety following the anticipation of death by finally being hanged? Or is it the freedom of lessening the punishment and being commuted to life imprisonment? One thing ought to be made clear. Should we await the resurrection of executions in Kenya or should we bury and forget the death penalty rule? It is either we go hard, or we go home. As this paper stands, we should go home, or rather it’s time for the death penalty to go ‘home’. This owes to the arguments discussed throughout the paper which can be summarized as follows; it amounts to torture, cruel and inhuman treatment, death penalty does not deter crimes, retribution only heals vengeance and does not do any justice, public opinion matters not on the issue of the death penalty, and last but least it violates the fundamental right to life.
The author is a third-year Student at the University of Nairobi School of Law and a passionate researcher and writer
Email address: victuz4535@gmail.com
[1] Ann Nyathira, 43% of Kenya Prisoners on the Death Row Did Not Know What Was Happening during Trial- Report, Citizen digital, January 24, 2023.
[2] Kenya National Commission on Human Rights, Abolition of Death Penalty in Kenya, Position Paper, NO. 2, (2007).
[3] Bradford C, Waiting to die, Dying to Live: An account of the death row phenomenon from a legal viewpoint, 5 Interdisc.J.Hum. Pts. L.TT, (2011).
[4] 11 EHRR 439.
[5] Ibid.
[6] The New Humanitarian, Feature-Prisons spark hope for human rights, February 26, 2003.
[7] Ibid.
[8] Ibid.
[9] Ibid.
[10] Ibid.
[11] Ibid.
[12] (2017) eKLR. Para 57-58.
[13] Hoyle C, Harry L & Jabbar P, Why has Kenya not abolished the death penalty? Habit and Inertia, University of Oxford, September 20, 2022.
[14] ‘Kenya. Death Penalty Here to Stay, MP’s Decide’, Nessuno Tochi Caino, August 2, 2007.
[15] Ibid.
[16] Kenya National Commission on Human Rights, Abolition of Death Penalty in Kenya, Position Paper, NO. 2, (2007).
[17] [1995] ZACC 3.
[18] (1943) 319 US 624.
[19] Ibid.
[20] Ibid at para 21.
[21] Parikh, Sujar, “A New Vision of Justice is more effective than the Death Penalty,” Peace Power, Berkley’s Journal of Principled Non-Violence and Conflict Transformation, Vol.1, Issue 1, (2005).
[22] Ibid at para 23.
[23] Mbushuu & Another v Republic, (1995) ILRC 216 (CA, Tanzania).
