The death penalty

and its colossal controversy

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BY David Wanjala

“The moment the words ‘sentenced to death’ are pronounced in court on your judgment day, life changes forever. It is total confusion and despair. Between choosing to believe the reality of what you’ve just heard and resisting it hoping the nightmare will soon end paving way for normalcy, you are whisked away as the devastated family members present give up hope on you. The world ends there,” says Antony Ongulu Deba, a death row inmate at the Kamiti Maximum Prison.

The father of three was sentenced to hang in February 2012 on charges of murder. The Court of Appeal rejected his appeal in October 2013. Prior to his arrest in 2008, Mr Deba worked as a casual laborer at the Export Processing Zone in Athi River. He alleges his trouble began when a robbery with violence suspect was lynched on the company premises and he, together with two of his other colleagues, was held responsible. They were all sentenced to death by a High Court in Machakos.

“It is not a solution. Once there’s nothing you are living for, once you give up hope, you can do anything. It is the core cause of unruliness within us and even against officers since you know there is nothing more severe than what you already are undergoing. There is no worse punishment,” the visibly-distressed Kamusinga Boys form two dropout says, adding that knowing that you will go home after sometime, whatever the duration, helps.

His colleague on death row, Joseph Mwangi Ngige, echoes the same sentiments. He says once you are condemned to death in the first instance, it is like all doors for redemption are shut on you. The law, he argues, should be changed to abolish death and life sentences.
“Apart from family giving up on you, legal fees for appeal shoot up beyond your means. In most instances, the only other option one has got is to dispose of property – mostly inherited land. It is very unfair especially if you consider yourself innocent, and because of the fact that the law affords you the right to appeal,” he avers.

The former lab technician with a leading brewing company was arrested and charged with robbery with violence in October 2010. A Magistrates Court sentenced him to death in October 2011.

Ngige, a father of four, is now heavily engaged in the paralegal work for death row inmates sponsored by among others, Kituo cha Sheria and the Legal Foundation. He reads heavily on the justice systems of other jurisdictions and the appeal processes. He has successfully prepared appeal briefs of 11 death row inmates and believes that the Kenyan justice system should embrace the United States of America’s parole system where a parole board is responsible for granting or denying parole and supervising those released on parole.

Parole is the provisional release of a prisoner who agrees to certain conditions prior to the completion of the maximum sentence period. Parole differs from amnesty or commutation of sentence in that a person paroled is still considered to be serving their sentences, and may be returned to prison if they violate the conditions of their parole. Conditions of parole often include things such as obeying the law, refraining from drug and alcohol use, avoiding contact with the parolee’s victims, obtaining employment, and maintaining required contacts with a parole officer.

Morris Kaberia takes issue with the endemic unpredictability of when the sentence will be carried out. “If you sentence someone to hang, you had better carry it out within reasonable time. If you cannot, then scrap it from the law altogether,” he says.

The former Criminal Investigations Officer was arrested (while still serving) for robbery with violence on November 1 2004. The Magistrates Court sitting in Kerugoya sentenced him to death in September 2005. In 2006, a High Court sitting in Embu found flaws in his trial and ordered for a retrial. The retrial, this time sitting in Thika still found him guilty as charged and meted out the same sentence. His appeal in is still pending.

Kaberia also strongly roots for the scrapping of the death and life sentences. “Long sentences do not necessarily change people. Definite term sentences should replace them. The hope that you can have your life back will help. Sometimes, innocent people have been sentenced to death; do you feel the anguish?” he posses.

He argues that Britain, from which Kenya inherited the capital punishment law, has since abolished it – the last executions were carried out in 1964.

On December 12 last year when Kenya was celebrating 50 years of independence, a local daily reported, a death row inmate at Kamiti Maximum Security Prison chopped off his manhood when his hopes of regaining freedom by presidential pardon were dashed.

“He told other inmates that he had been hoping to be released on presidential pardon but when the President did not mention the release of prisoners, he decided to chop off his manhood because it was useless to him since he cannot have children now,” the Star newspaper quoted the inmate as saying.

Francis Karuri had served 15 years on death row for robbery with violence before his sentence was commuted to life imprisonment. He also suffered from a liver ailment. He was rushed to Kenyatta National Hospital where efforts to reattach the severed organ failed.

Under Kenyan law, offenses of murder, treason and robbery with violence including attempted robbery with violence carry a mandatory death sentence. The penalty, as a form of punishment has existed, despite its shadow-like controversy, in almost all civilisations. It is only the mode of its execution that has varied from country to country. Crucifixion, stoning, drowning, burning or boiling alive, hanging or beheading are some of the commonest modes that have been used throughout history. With advancement in civilisation and technology, however, other forms like shooting, electrocution and lethal injection were embraced.

The application of the death penalty in colonial Kenya was heightened during the struggle for independence. In 1953, following the declaration of state of emergency in 1952, Sir Evelyn Baring, Governor-General of Kenya, imposed the death penalty for persons who administered the Mau Mau oath.

Independent Kenya embraced it. Available data show that from 1963 to 1987, covering the entire period the founding President, Mzee Jomo Kenyatta was in power and nearly 10yrs into his successor, President Daniel Moi’s regime, 280 persons out of the 3,584 sentenced to death were executed. 135 benefitted from presidential pardons.

It is the infamous Kamiti Maximum Security Prison where most of the executions were carried. Located in the originally agricultural county (it is gradually changing into a real estate county owing to its proximity to the capital city, Nairobi) of Kiambu and formerly named Kamiti Downs, the prison facility sits in the middle of its own 1,200 acre estate that lie untended.

Dedan Kimathi was hanged here by the British colonial administration on February 18, 1957. So were the 1982 attempted coup leaders Capt. Hezekiah Ochuka and Pancras Oteyo Okumu on May 17, 1987. The duo had attempted to overthrow the increasingly dictatorial regime of President Moi. No death penalty, it is believed, has been carried out since then.
According to a Kenya Human Rights Commission, KHRC, (formerly Kenya National Human Rights Commission) Paper of 2007 titled Abolition of the death penalty in Kenya, 3, 741 persons were convicted of capital offenses that warranted death penalty between 2001 and 2005. In 2001, 728 were convicted, 865 in 2002, 787 in 2003, 617 in 2004 and 744 in 2005.

Though the death penalty under the Kenyan law is reserved for murder, treason, robbery with violence and attempted robbery with violence, most of the known cases where this form of punishment was meted and executed since independence are only where treason was alleged. This has cemented the school of thought that the death penalty was used as a political tool with which to cow dissidents and maintain a stranglehold on power.

For all those who clamoured for constitutional amendment, more so to allow for political pluralism, treason charges always hung around them. If you were convicted of the charges, you glared at the death sentence with real possibilities of being hanged. It served to scare opposition figures from vigorously pursuing their political convictions.

President Kibaki, in his second term commuted the sentences of all those on death row in Kenya in 2009. This affected over 4,000 cases and is thought to be the largest commutation of death sentences in the world. Prior to that, there had been attempts, particularly during the Constitution making process, to strike the death penalty out of our laws with the proponents of the same arguing it is archaic and unconstitutional.

KHRC reckons, in its paper mentioned above, that despite initial inclusion of express language in the draft Constitution outlawing capital punishment, delegates at the National Constitutional Conference at the Bomas of Kenya eventually voted in favour of retaining capital punishment, “principally on the basis that people who committed heinous crimes should be punished as harshly as possible.”

As a result, KHCR adds, the Bomas Draft recognised that every person has the right to life, but remained silent on the death penalty and neither mentioned situations under which the right to life may be deprived. Adopting a different approach from the Bomas draft, the report says, the Wako Draft II recognised the right to life but gave Parliament the power to legislate the extent to which a person may enjoy that right.

By implication, the death penalty still had room in the then proposed Draft Constitution that was rejected during the November 2005 referendum. Even the new Constitution 2010 did not expressly deal with the question of death penalty. In fact, experts argue, it remains silent on the issue in essence giving leeway for the courts to mete out the punishment to capital offenders.

As recent as October 12, 2011, a Court sentenced a former police officer and his businessman friend to hang for murdering the son of former Gatundu North MP Patrick Muiruri. High Court Judge Mohammed Warsame sent Dickson Munene and Alexander Chepkonga to the hangman’s noose after finding them guilty of the murder of Dr James Ng’ang’a Muiruri outside a Westlands nightclub in 2009.

According Charles Kanjama, an advocate of the High Court and commentator on political and legal issues, it is not even a question of discretion by the judges. “The Penal Code still has mandatory death penalty for 4 or 5 offences, and so judicial officers do not have discretion. The judiciary tried to change this by an appeal decision in 2010, Mutiso v R, but this was overruled recently in Mwaura v R.”  Kenyans have grappled over the years, like the rest of the world, with the question of capital punishment – whether to cling on it in the statutes when the State has not executed anyone for 27 years. According to Mr Kanjama, capital punishment may be necessary in some cases, “but I believe such cases are few and far between.”

He however stresses that it is the job of Parliament to reform the law, not the courts. When the new Constitution was being debated, the advocate says, “Requests to abolish the death penalty were considered and rejected. Still, it is possible to amend the Penal Code if required.”

Even more controversial, however, is the question of the time it should take to effect the sentence after all appeals have been exhausted.

Does it merely constitute “unconscionable treatment” in the words of Kanjama, or does it border on gross miscarriage of justice to the convicted?
“I think,” Kanjama says, “it is unfair, and may constitute unconscionable treatment. There should be a reasonable time limit for the punishment to be carried out after all appeals end, else the sentence gets commuted.”

Death-row syndrome
It has not been a headache only in Kenya. The question was considered and adequately addressed in the Constitutional Court of Uganda in the Susan Kigula and 417 others v the Attorney General, June 9, 2005.

The petitioners, all on death row, having been convicted of offences under the laws of Uganda and sentenced to death, contended, among others that “a long delay between the pronouncement of the death sentence and the carrying out of the sentence, allows for a death row syndrome to set in. Carrying out of the death sentence after such a long delay constitutes a cruel, inhuman and degrading treatment prohibited by articles 24 and 44 of the Constitution.”

They also argued that the imposition of the death sentence on them was unconstitutional because it was inconsistent with specific Articles of the Constitution that prohibit cruel, inhuman or degrading punishment or treatment.

While the four-judge bench dismissed all other prayers of the petitioners including setting aside or commuting the death sentence imposed on them, they agreed with the petitioners’ contention that the long delay between the pronouncement of the death sentence and the carrying out the sentence constitutes a cruel and inhuman treatment.

“Any delay to carry out the death sentence after it had been confirmed by the highest appellate court in the land is inexcusable. The sentence ought to be carried out within a reasonable time… A person who is sentenced to death does not lose the protection of the law against cruel, inhuman or degrading treatment.

“Therefore, a delay of more than three years to carry out the sentence after the same has been confirmed by the highest appellate court would amount to unreasonable delay. If the death sentence is to retain its meaning, then it has to be carried out within a reasonable time – at best within three years after the highest appellate court had confirmed the sentence. Any period beyond that would in my view constitute inordinate delay and therefore unacceptable,” wrote Justice C.K. Byamugisha of the Constitutional Court of Uganda – the equivalent of the Supreme Court of Kenya.

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