Death penalty debate: To abolish or retain?

Lawyers representing convicts challenging the death penalty want the application heard afresh by the newly constituted Supreme Court.

This week, lawyer Fred Ngatia, who is acting pro bono (for public good without charge) for the convicts, wrote to the Supreme Court registrar requesting an urgent mention before the new judges to decide if they will hear the application again.

“From the bench that heard the petition, only four judges are in service and since judgment was never delivered, it would be appropriate to list the petition for mention at the earliest date for parties to make representations if it should be heard afresh,” said Ngatia.

This comes amid reports that some Kenyans want crimes like defilement, drug trafficking and terrorism recognised as capital offences.

Hangman’s noose

Apart from challenging the constitutionality of the death penalty, the application is also questioning the legality of life sentences which could see over 2,700 convicts, whose death sentences were commuted to life imprisonment by President Uhuru Kenyatta, walk free.

The suit was heard by a full bench of the Supreme Court, but Judges Willy Mutunga, Kalpana Rawal and Philip Tunoi retired before delivering a verdict. The Constitution demands that the minimum quorum for the Supreme Court to determine a dispute must be five.

And as the convicts await, the Power of Mercy Committee says many people still support capital punishment, and want convicts of other crimes committed to life or death sentences.

The proposal is one of several floated in forums held by the Power of Mercy Advisory Committee, which has been conducting public hearings across the 47 counties seeking Kenyans’ views on administration of capital punishment.

Six counties — Nairobi, Mandera, Wajir, Marsabit, Tharaka Nithi and Isiolo — are yet to host the committee, which is expected to wind up its tours before the end of the year.

The committee is a constitutional body mandated to advise the President on exercising the power of mercy. This is a prerogative power granted to the President, by the Constitution, that allows him to pardon reformed and rehabilitated convicted criminal offenders that deserve an early release from prison.

The administration of capital punishment has been an ongoing debate in the country, particularly on the subject of whether Kenya should abolish the death penalty. Currently, murder, treason, robbery with violence, attempted robbery, and administering an oath to commit a capital offence carry the mandatory death sentence.

Mr Ngatia said the legality of the mandatory death sentence, some of which have been reduced to life imprisonments, need to be determined urgently to save those still facing the hangman’s noose.

“Determination of the issues raised in the petition has far reaching consequences on the appellant as well as numerous other death row convicts held in various prisons. That is why it is necessary to fast track the application to have the matter settled,” he said.

Ngatia and Kioko Kilukumi were appointed by the former CJ to aid Wilson Mwangi, a convict whose death sentence was commuted to life imprisonment, in his challenge of the death penalty.

They argue that Section 204 of the Penal Code, which prescribes mandatory death sentence for capital offences, violates Article 24 (2) of the Constitution which gives every person a right to freedom and Article 26 (1) which gives right to life.

The lawyers submitted that the Penal Code, which prescribes the death penalty, is a creation of Parliament, and that any law which violates the Constitution is null, void and unconstitutional.

“The mandatory nature of the death sentence is an inflexible punishment fixed by the legislature in violation of constitutional principle of separation of powers. It is unreasonable and unjustified in an open democratic society based on human dignity, equality and freedom,” said Ngatia.

The petition also challenges legality of the life sentence, arguing that it is inhuman to keep someone locked for an indefinite period.

If the Supreme Court agrees to the lawyers argument, it will trash the president’s gesture in commuting the death sentences of 2,747 convicts and may release them based on the number of years they have served in prison. “Life imprisonment is a nullity in law. It is inhuman to be in prison for an indefinite period, waste away the body and soul without ever knowing when to be released. It is an infringement to right to liberty and should be declared unconstitutional,” said Ngatia.

During the hearing of the application, Director of Public Prosecution Keriako Tobiko supported the calls to abolish the mandatory death sentence for capital offences.

Judicial independence

Through litigation counsel Njagi Nderitu, the DPP submitted that sections of the penal code limiting judges to pass a mandatory death sentence for those guilty of murder and robbery with violence should be changed to allow more independence for judicial officers.

“We are not saying the death penalty should be abolished, but that it should not be the only sentence for capital offences,” said Nderitu.

Attorney General Githu Muigai has proposed to draft Bills that could see abolition of both the death penalty and life sentences, arguing that some sentences within the Kenyan laws do not serve any purpose.

According to Regina Boisabi, the vice chairperson of the Power of Mercy Advisory Committee, participants at the public forums opposed to the death penalty argue it has not deterred crime.

A good number of participants across the 41 counties the committee has so far visited want drug trafficking and defilement also listed as capital offences, with those from Elgeyo Marakwet and Samburu Counties calling for similar recognition to be accorded to cattle rustling.

Bungoma Anglican Bishop George Mechumo argues there are better ways to punish capital offences and that the death sentence should be abolished given that the church treats life as sacred.

But Lawyer Harrison Kinyanjui, however, disagrees and maintains the death sentence is Biblical and should never be abolished.

“Biblically speaking, there is provision for the death sentence. God himself said in his commandments that you should not take away another person’s life and if you kill, you should also be killed to compensate for the lost life,” he said.