Death penalty: Is it time to abolish it?

Kenyan courts are daily sentencing people to death but the sentences have not been carried out for nearly 30 years.

Similarly what is a 'life sentence' legally remains an unanswered question.

Early this month Justices Mbogholi Msagha, Florence Muchemi and Mumbi Ngugi issued a judgement on these matters.

Having been personally involved, I will endeavour to objectively put the issues raised in perspective.

It is imperative to first note that the mandatory death penalty is provided for under Section 204 of the Penal Code. Even so, since 1987 no person has been executed in Kenya, nevertheless, the courts have continued to pass the death sentence.

In the last five years about 1,620 offenders have been sentenced to death.

In 2009, there was a mass commutation of sentences from death row to life imprisonment by the then President, Mwai Kibaki.

The Court summarised issues raised by the Petitioner thus:-

- "The right of an accused person to know with certitude what sentence he stands to suffer at the date of taking plea.

-The legality and constitutionality of the mandatory death sentence

- The mandatory death sentence and the exercise of the courts discretion

- Obligations under general rules of international law and international treaties and conventions

- Enforcement of the death sentence

- The President's authority to exercise the power of mercy

- What constitutes life Imprisonment?"

The seven issues raised by the Petitioner were addressed by the Court in great detail.

The Court's response to the first and second issue was that, it is without a doubt the right of an accused person to know the sentence that they will meet should they be found guilty of an offence.

Further, it was held that the death sentence is clearly provided for in law and is as such not contrary to the Constitution, since the sentence is a limitation to the right to life contemplated by the Constitution.

In addition to that the Court in citing Court of Appeal decisions on the constitutionality of the death penalty stated:

"As a High Court exercising constitutional jurisdiction, although comprising three judges, we have no jurisdiction to review decisions of the Court of Appeal.

Such uncertainty as may be deemed to exist in Kenyan law with regard to the death penalty as has not been sufficiently addressed by the Court of Appeal can only be addressed by the Supreme Court."

On the third issue, the Court held that the wording of the Penal Code, which provides for the mandatory death sentence, does not leave any room for the court to exercise any discretion in matters of sentencing.

The Court then addressed the fifth and sixth issues simultaneously stating as follows:-

"The power to order the execution of the death penalty, or to commute it to a term of years or a life sentence, or to pardon the person convicted, is expressly vested in the President by law...

The law is thus clear that the responsibility for determining whether the death penalty is enforced or not lies on the President; the role of the Commissioner of Prison being solely to carry out or direct the carrying out of the execution."

Pertaining to the fourth issue, the court held that the death penalty is permitted by the Constitution and Statute, and is not in contravention of Kenya's obligations under international law.

The Court however, stated its opinion as follows:

"In our view, the failure to carry out executions for years after the sentence of death has been passed, and the appellate process has come to an end amounts to an unconstitutional act and a violation of the rights of those convicted and therefore agree with the reasoning that it amounts to cruel and degrading treatment or punishment."

The court then added that:-

"The answer, in our view, lies with the executive and the people of Kenya through their elected representatives in the national legislature.

The President has the power to sign death warrants in respect of convicted offenders who have been sentenced to death, or commute the sentence of death to life imprisonment, which he has done in the past under powers vested in him."

On the seventh and final issue the court concurred with the Petitioner that it is unclear what amounts to a life sentence and stated that:

"As submitted by the Petitioner, however, what amounts to life imprisonment is unclear in our circumstances.

"It is, however, for the court to determine what should amount to a life sentence; whether one's natural life or a term of years. In our view, that is also the province of the legislature."

In making its final remarks, the court stated thus:

"While we are satisfied that, on the basis of the existing constitutional and statutory provisions and judicial precedents, the death penalty is not unconstitutional, we are of the view that the failure to carry out the death sentence indefinitely is unreasonable and does not accord with respect for the constitutional rights of those who have been found guilty of capital offences and sentenced to death.

The responsibility to issue death warrants or to commute the death penalty to life imprisonment lies with the President and not the courts.

As to what amounts to life imprisonment, that is a matter for the legislative branch of government."

The uncertainties, indeed legal mockery, of sentencing policies, are resulting in contradictory interpretations and courts and the justice system hardly proving deterrent to crime.

The President, the Supreme Court, the legislature and the people of Kenya at large need to take pro-active steps to put these matters to rest once and for all!`