Battle to outlaw death sentence presses on

There are 165 people currently on death row in the country, out of which three are women.

Court of Appeal Judge, Justice John Mativo, said yesterday there is a significant move worldwide to abolish death penalty, which has been termed as inhuman, degrading and irreversible.

Even in countries that have it in their law books, Mativo said people are sentenced to death, but they are not executed, due to reluctance to terminate human life.

In 2017, the Supreme Court made a landmark decision, outlawed death penalty in murder cases. As a result persons convicted of the offence of murder have been given the window to apply for re-sentencing and some of them have been sentenced to definite jail terms.

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According to Justice Mativo, there is still another category of offenders in the country who have been found guilty and convicted of the offence of robbery with violence.

“Recently, again this year, the Supreme Court clarified that the decision in 2017 does not apply to capital offences, that is, robbery with violence. So, we have a category of offenders who are now being told, we cannot help you, you have to go suffer death because the law stands as it is,” he explained.

The judge was speaking in Nairobi during a forum organised by International Commission of Jurists (ICJ) – Kenya in commemoration of the World Day against Death Penalty with the tagline ‘‘The death penalty protects no one: Abolish it now’’.

“We are looking forward to more development of the law, to a situation whereby we eliminate the death penalty from our law books, but that is the only way to go about it. So, as long as it exists, our courts are bound to follow what the law says and that becomes a bit difficult when you are sentencing, you have no discretion to impose an appropriate sentence, depending on the nature of the offence, the circumstances under which it was committed,” argued Justice Mativo.

Even with death penalty in law, the judge observed that those who are supposed to sign the death warrant have not been signing, and nobody has been executed for a while now, leading to a pile-up of life sentences in prison. 

“Right from the first president, the second president, rarely signs the death warrant, so you can’t just kill like that, it’s a process. So people are sent to jail and they remain there for life. That is why we are saying, then give them definite jail terms, instead of sentencing them to a situation where they are waiting for death, which is not forthcoming, and in any event, we have said, death is cruel, it’s inhuman,” stated Justice Mativo. 

Kenya has not executed any convict since 1987, and ICJ acting Executive Director Demas Kiprono wants the abolition of the death punishment even though a moratorium is currently in place.

Over the years, he said various presidents have pardoned many persons under death row, and Kenya, as a progressive country with a Constitution that upholds the right to life and freedom from torture, should move towards realisation that death penalty does not offer safety to anyone.

“It is not a deterrence to crime, and so that we move towards where the world is going, where we seek to rehabilitate persons who have been found to have done crime. We seek to, as a society, not punish with a view of revenge, but punish with a view of seeking justice, and so that we do not fall under the trap of the person who committed the crime and act like them,” noted Kiprono.

He added: “We have a higher moral ground, and say that we will seek to ensure that the person is rehabilitated. If they can get back to society, let them do that. If not, let us find other alternatives to the death sentence.”

Efforts to amend the death penalty are underway through the Penal Code (Amendment) Bill, which seeks to delete the sections on death sentence, and replace them with life imprisonment.

If successful, Kenya will join 26 other African states, including Cape Verde, Chad, Sierra Leone, Central African Republic, Ghana and Zambia, which abolished the death penalty in law.

According to ICJ, the Bill which was presented by then Leader of the Minority Party Opiyo Wandayi has been adopted by Justice and Legal Affairs Committee in the National Assembly.

The proposed law seeks to amend the Penal Code Cap 63, specifically sections 40, 60, 204, 296 and 297, by deleting the word ‘death’ where it appears and substituting it with ‘life imprisonment.’