There has been concerted global lobbying for the abolition of capital punishment. This is evidenced by, among other things, the passage of the Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty and a similar move being made by other regional entities such as the EU through its Protocols No 6 and 13 to the EU Convention on Human Rights. Africa has not been left behind in this momentous tide of change, with Sierra Leone becoming the latest and the 23rd African country to abolish the death penalty.
In 2017 the Supreme Court of Kenya (SCOK) passed a landmark death penalty decision—a decision which was then envisioned to be the herald of a new dawn for Kenya’s Criminal Justice System (CJS) in this area. However, new guidelines on that decision, issued by the same court in July 2021, appear to suggest otherwise. What appeared then to be a hope for the future of the death penalty has presently proved to be a further hurdle in this endeavour. This commentary aims to analyse the future of the death penalty in Kenya in light of these new guidelines by the SCOK. I conclude that the future of capital punishment in Kenya is still bleak, and in need of further all-around activism.
The Muruatetu Case: The SCOK Declaration of the Illegality of the Mandatory Death Penalty
The Muruatetu case is arguably a significant decision in the realm of Kenya’s CJS. In addition to it being rendered by the country’s top court, the decision is equally telling as it sheds light on the two differing stances taken by various courts on the death penalty in Kenya.
Prior to the Muruatetu case, two divergent cases—the Mutiso case and the Mwaura case—had long held sway on the position taken by the courts on the death penalty. In the former decision, the Court of Appeal declared capital punishment unconstitutional for denying the courts the discretion in sentencing. In the latter decision, however, the same court validated the mandatory death sentence stating that the use of the word “shall” availed no discretion to the courts to decide otherwise. Rendered in the new constitutional dispensation, the latter case informed the majority of the decisions on the offences prescribing the mandatory capital punishment.
It was against this backdrop that the two consolidated petitions in the Muruatetu case were brought to the SCOK for determination. The petitioners were murder convicts who were on death row. The crux of their petition was a determination on the constitutionality of the mandatory nature of the sentence which was imposed upon them by the High Court and affirmed by the Court of Appeal.
In finality, the SCOK declared the mandatory death penalty as set out in section 204 of the Penal code as unconstitutional. The major rationale underpinning the declaration was the penalty’s interference with the right to a fair trial. However, the court clarified that the declaration did not interfere with the validity of the discretionary death sentence contemplated under Article 26(3) of the Constitution of Kenya (COK).
Fresh Guidelines on the Muruatetu Case: A Further Hurdle?
Confronted with conflicting and divergent applications of its decision by the lower courts, the SCOK issued new guidelines on Muruatetu which, as I will later posit, pose a significant hurdle in the realization of the abolishment of capital punishment.
The inordinate delay by the agencies directed in paragraph 112(c) of the judgement in coming up with a framework on re-sentencing led to varying applications of the decision by the lower courts. Clarifying on the inapplicability of its earlier decision to other offences prescribing mandatory or minimum sentences, the SCOK dealt a huge blow on the previously announced hope for the eradication of the death penalty (both in its mandatory and discretionary outfits).
In paragraphs 11-15 of the guidelines, the court specifically asserted that its previous directions were solely limited to murder cases. It decried the generalization and expansion of the judgement and its reasoning to other cases prescribing mandatory and minimum sentences. It went on to state that since the petition was in challenge of Section 204 of the Penal Code (which prescribes the punishment for murder), its directions were solely limited to murder cases only. In effect, therefore, the SCOK has clarified that its earlier declaration of unconstitutionality of the mandatory death penalty was only for murder cases. Thus, the attendant directions in the decision were not an all-encompassing yardstick for other offences prescribing mandatory or minimum sentences.
The upshot of the new guidelines is that the death penalty (both in its mandatory and discretionary outfits) is still enthroned in the Kenyan CJS.
A Myopic Interpretation?
The new guidelines are apparently myopic and indeed very restrictive. The exemption of the mandatory punishment for murder cases indicates that the mandatory death sentence is still applicable for the offences of treason, robbery with violence, and attempted robbery with violence. Therefore, the past chains which impeded the judge from considering mitigating factors in sentencing still firmly hold their grip within the CJS. Even so, the offence of murder still attracts the death penalty, albeit in a discretionary manner. Recent decisions such as Republic v Robin Kirui Lawendi & 2 others [2021] and Republic v Phineas Muriithi Muuga [2021] are a testament that capital punishment is still being handed in murder cases.
This state of affairs raises a lot of questions on the soundness of the rationale applied by the SCOK. On the preservation of the mandatory punishment for the three offences above, the question begs the reason for this selective application to murder cases only. It baffles logic as to why the court would deem the mandatory death penalty unconstitutional for murder cases while declining to make a similar determination for the other three, which also prescribe the punishment in its mandatory form. The mental agony of being on death row and its inhumane attributes are cross-cutting to every convict.
In paragraph 15 of the guidelines, the court stated that in order to invalidate the mandatory punishment for the other three, fresh and distinct litigation is needed for each of them. This is a further perplexing point in the court’s analysis. While it may appear that the court was avoiding undue judicial activism, this overly formalistic approach was uncalled for, especially considering that a fundamental human right was in question.
Looking Ahead: A Bleak Horizon?
If the new guidelines are anything to go by, the future of the death penalty in Kenya is still marred by legislative and judicial uncertainties. Even though Kenya is a de facto abolitionist country with no recorded executions in over 30 years, there are still significant hurdles in the journey towards the total abolishment of the death penalty.
The recent guidelines indicate that capital punishment is still firmly rooted within the country’s CJS. While abolishing the mandatory penalty for murder cases was a step in the right direction, it is nonetheless a drop in the ocean as it is still being applied, albeit in a discretionary manner. Furthermore, the preservation of the mandatory penalty for the other three capital offences implies that judges are still deprived of much-needed discretion in their determination of such offences.
On the whole, the death penalty situation in Kenya is in need of further activism. As per paragraph 15 of the guidelines, various stakeholders need to embark on urgent activism to push for the abolishment of the mandatory penalty for the three capital offences which still attract it. Additionally, legislative intervention is also much needed for the abolishment of the discretionary death penalty.
Edgar Odongo Ochieng, a staffer at JURIST, is a fourth-year law student at the University of Nairobi, School of Law. Odongo’s research interests include Human Rights Law. He would like to thank his colleague, Anne Bloomberg, who inspired him to deeply interrogate the death penalty in Kenya.
Suggested citation: Edgar Odongo Ochieng, The Death Penalty in Kenya: A Bleak Future?, JURIST – Student Commentary, September 20, 2021, https://www.jurist.org/commentary/2021/09/edgar-odongo-ochieng-death-penalty-kenya/.
This article was prepared for publication by Viraj Aditya, a JURIST staff editor. Please direct any questions or comments to him at commentary@jurist.org
