About the ‘mandatory’ death penalty

About the ‘mandatory’ death penalty

By Chrispin Bosire

The Supreme Court pronounced itself on the status of the mandatory death sentence in resolving the conflict between “Godfrey Ngotho Mutiso v Republic and Joseph Njuguna Mwaura & 2 Others v Republic”. The Supreme Court adopted a cogent analysis of Article 24’s limitation of rights approach, demonstrating a succinct intention to place the country on the path of a robust legal and human rights culture. If this path continues, then the future of the Human Rights discourse in Kenya is bright and subject to tremendous positive progress.

The foundational axiom underpinning the penalty is embedded in the concept of vengeance and, truthfully, does not right the wrong of killing. Some people may want to argue that the death penalty serves the ultimate goal of deterrence of crime in society, which argument I strongly oppose.

Those who opine in favour of the death penalty aver that getting rid of the perpetrator permanently from the world gives a great sense of gratification and security to the society, particularly the family of the victim.

Judges, in imposing the death penalty, normally rely on the black letter of the law and invoke the provision of the penal code. Some rely on judicial precedents premised on the doctrine of stare decisis. The death penalty in many instances is viewed by some as the ‘kill by sword, be killed by sword’ philosophy. Ordinarily, condemnations to death are never given concise and lengthy academic inquest as they accordingly deserve.


The death sentence in Kenya has not been enforced since 1987 when Hezekiah Ochuka and Oteyo Okumu were convicted of plotting the August 1 1982 coup.

The country seems to have adopted a de facto abolition of the death sentence or adopted a policy to abolish the sentence. The question that arises is, what is the point in maintaining an inhumane sentence in the law books especially if the country has demonstrated reluctance to enforce it?

The right to life is the most fundamental right on the basis of which all other rights are based. Although this right is not absolute as per the present dispensation, the power to limit it, in this case the general limitation clause in Article 24, is not absolute and limitless itself. The death penalty, rather than seeking to meet the ends of justice, seeks to commit another injustice by depriving the state of the only subject to correction and reformation – the convicted.

Fair Trial

The High Court in “Joseph Kaberia Kahinga and Others v The Attorney-General” determined that it would amount to a violation of accused persons’ right to fair trial as provided under Article 50 (2) of the Constitution if the Court does not receive and consider mitigating factors and other statutory and policy pre-sentencing requirements.

In the circumstances therefore, the mandatory nature of the death sentence in Section 204 of the Penal Code infringes on the right to fair trial as the sentence is already predetermined by statute. Besides, sentencing is a judicial function, hence the legislature cannot purport to encroach by denying judicial discretion. In other words, the court considering a matter should not be limited as to the sentence that is available by statute, but should be allowed to consider other extraneous factors before handing a death sentence.

Post-authoritarian regime

The Constitution of Kenya appreciates the nature of the past throughout its substantive provisions. The Bill of Rights, for instance, is as a result of a shaky repealed regime that had rights that otherwise were aspirational and marred with exceptions to the point where it was no longer described as the Bill of Rights, but rather the Bill of Exceptions.

A Constitution like ours requires a generous interpretation suitable to give to individuals the full measure of fundamental rights and freedoms referred to. The nature and import of democracy underscores objectives that enhance individual self- fulfilment, participation in decision making and a balance between stability and change between individual liberties for the good of the majority. Indeed, it’s time for change.

Provisions relating to rights must be interpreted generously to allow the full benefit of the rights, while avoiding a strict and legalistic approach that may impede the realisation of the objectives of the rights’ provisions. The right to life has to be given a sui generis interpretation, since it carries on its back all other consequential rights.

It is sad and unfortunate that the Constitution did not outlaw the death sentence by declaring the right to life as absolute. The Constitutional order for limiting rights entails the limitation of the hitherto absolute and limitless rights and entitlements of the citizenry. Limitation of rights is part and parcel of the recognition and protection of rights. Limitation of the right to life is the prerogative of the state and it derives authority and legitimacy from the Constitution. Limitation to the right to life must be interpreted narrowly, because although rights are not absolute, the power of the state to limit rights is itself limited.

In “Federation of Women Lawyers Kenya (FIDA-K) & 5 others v Attorney General & another”, it was stated that provisions relating to fundamental rights and freedoms must be given purposive and generous interpretation in such a way as to secure maximum enjoyment by all, of the rights and freedoms guaranteed. Burden is then on the person or authority seeking the derogation to show that the act or omission is acceptable within the derogation permitted under the Constitution.

The state as the stronger party in the relationship is restrained in order to give the individual adequate space to exercise rights. This explains the position that the limitation provision is interpreted narrowly since it is an exception to the general rule that citizens, though weaker parties are entitled to enjoy inherent rights such as the right to life.

Article 25 provides that despite any other provision in the Constitution, the following rights and fundamental freedoms shall not be limited; freedom from torture and cruel, inhuman or degrading treatment or punishment, freedom from slavery or servitude, the right to fair trial and the right to an order of habeas corpus. By all means, limiting the right to life leads to a violation and derogation of the otherwise absolute rights that the Constitution asserts.

Article 2(4) provides, “any law that is inconsistent with the Constitution is void to the extent of its inconsistency”. Indeed, the Penal Code in its provision of Section 204 by all means is inconsistent with several provisions of the Constitution including the right to human dignity and to have that dignity respected and protected, the right to freedom from torture and cruel, inhuman or degrading treatment and punishment, among other provisions.

The Constitution seeks to preserve life. This is evidenced by the presence of a robust Bill of Rights, at the core being the right to inherent human dignity and to have that dignity respected and protected in an open and democratic society. When the right to life is limited, all other rights stand limited hence beating the essence of absolute rights.

Kenyan courts

The High Court has jurisdiction, constitutionally, to hear and determine applications for redress of a denial, violation or infringement of or threat to a right or fundamental freedom in the Bill of Rights.

The court is mandated to ensure the enforcement of Human Rights. Decisions from the courts must reflect, respect, observe, promote and protect the rights and fundamental freedoms in the Bill of Rights.

Kenyan courts continue to hand down death sentences, but there is some dispute over the number. Amnesty International reports a cautious number of new death sentences each year: 5 in 2010, 11 in 2011, and 21 in 2012. Other non-governmental organizations report much larger numbers. For instance, Penal Reform International and the Foundation for Human Rights Initiative estimated that there were up to 2,000 people on death row in 2013.

Despite a significant decision striking down the mandatory death penalty for murder in 2010, the Penal Code retains mandatory death sentences. In “Mutiso v Republic”, the Court of Appeal at Mombasa reasoned that such a punishment violated the right to life and protections against arbitrariness and inhuman treatment. This reasoning is equally applicable to other death-eligible offenses. Although the judgment only referred to murder, the Court of Appeal stated that the holding might be applicable to other capital offences.

Despite the judgment in the Mutiso case, in 2013 the Court of Appeal at Nairobi in Joseph Njuguna Mwaura & 2 Others v Republic upheld the mandatory death penalty for armed robbery, holding that it was up to the legislature to decide whether or not to retain the mandatory death penalty. This kind of legal reasoning limits the scope of the court and indeed it is sad that the court failed in its mandate to uphold the Constitution of Kenya.

Progressive jurisprudence

In “Mutiso v R” the court overturned the High Court decision convicting the accused to a death sentence. The court held that Section 204 of the Penal Code – that is, the mandatory death sentence – is antithetical to Constitutional provisions of protection against inhuman or degrading punishment or treatment and also fair trial.

In “R v Elizabeth Githiri Gachanja and 7 others”, the court quashed the conviction of the accused to death penalty for the murder of businessman Magondu in February 2000.

In “R v Pius Kibwayi and Daniel Kiriambei”, the High Court overturned the death sentence rendered by the Magistrates Court and ordered for a retrial on the basis that it was wrong to impose the death penalty twice on each of the accused. This case is a good illustration of the trial court’s failure to live by the aspirations of Human Rights discourses.

In “Republic v John Kimita Mwaniki”, the High court was stunned that the right to life is not one of those fundamental rights which may not be limited.

In “Evanson Muiruri Gichane v Republic”, the court opted for a lesser sentence of seven years’ imprisonment in a robbery with violence conviction as an alternative to the death sentence as provided for in the penal code.

Petition No. 15 of 2015 (as consolidated with Petition No. 16 of 2015)

The Appeal sought to raise a world over contentious fundamental legal issue that is the constitutionality of the mandatory death sentence. At the High Court, the petitioners were convicted and sentenced to death pursuant to Section 204 of the Penal Code. Their appeal against both that conviction and sentence was dismissed. Aggrieved by that decision, they filed two separate appeals in the Supreme Court which were later consolidated.

Their prayers were that the Mandatory death sentence, which had since been commuted to life imprisonment, be set aside and they be set free; and that a definite term of imprisonment, subject to the applicable remission rules, be meted out to them or alternatively, an order be made remitting the matter to the High Court to undertake a sentence hearing for the purpose of determining an appropriate definite sentence. The petitioners rejected the commutation of their death sentence to life imprisonment as untenable given that the mandatory death sentence imposed upon them was unconstitutional. 

Supreme Court resolve

The court was of the view that remitting the matter back to the High Court for the appropriate sentence seemed to be the practice adopted where the mandatory death penalty has been declared unconstitutional. The matter was therefore remitted to the High Court for sentencing. The High Court was urged that as a matter of prudence, mitigating submissions ought to be considered and evaluation of the appropriate sentence befitting the offence committed by the petitioners is necessary.

As a result of the foregoing, the Attorney General was directed to urgently set up a framework to deal with sentence re-hearing of cases relating to the mandatory death sentence.

The mandatory nature of the death sentence as provided for under Section 204 of the Penal Code has since been declared unconstitutional, which order does not disturb the validity of the death sentence as contemplated under Article 26(3) of the Constitution.

The Attorney General, the Director of Public Prosecutions and other relevant agencies shall prepare a detailed professional review in the context of this Judgment and Order made with a view to setting up a framework to deal with sentence re-hearing cases similar to that of the petitioners herein. A period of twelve months was set for the Attorney General to give a progress report to the Supreme Court.

Of significance, the court directed that the judgment be placed before the Speakers of the National Assembly and the Senate, the Attorney-General, and the Kenya Law Reform Commission, attended with a signal of the utmost urgency, for necessary amendments, formulation and enactment of statute law, to give effect to the judgment on the mandatory nature of the death sentence and the parameters of what ought to constitute life imprisonment. 

Lacking relevance

The mandatory death penalty does not deter crime. It is the likelihood of an arrest and prosecution that does. If one commits a capital offence and is not arrested and prosecuted, then the individual will not be deterred from committing such offence in future. The whole purpose of a fair trial is deterrence and imposing the death penalty is not as efficient as life imprisonment if at all the aim is to deter crime.

The mandatory death penalty is inappropriate. The Supreme Court has correctly directed that courts should review the circumstances and employ restraint and caution before handing a mandatory death sentence. This is a sure illustration that the state is ready to take a high moral stand by correcting legal wrongs by passing life sentences, instead of the archaic and fossil-like mandatory death sentence where it is fit to do so.

By meting out the mandatory death sentence, the state destroys life, creating a cycle of bitterness and not remorse as should be. The state will not be any different from a person purporting to punish by killing, so the death penalty is immoral and simply a sanitized form of vengeance, which is no longer tenable in the present society.

Besides, witnesses and prosecutors make mistakes or even lie, coupled with the flaws in the adversarial system of criminal adjudication. It is inevitable that innocent people will be sent to the gallows, in an irreversible process. This is sufficient justification for striking out the mandatory death sentence by the Supreme Court.

The mandatory death penalty erodes gains attained in respect to preservation of life. The importance of the right to life cannot be overlooked especially in a state such as Kenya, where it has been violated with a lot of impunity in the past by political regimes which have engaged in endless extrajudicial killings.

Weighed against the justification for limitation of rights as set out in Article 24, limiting the right to life does not satisfy the inclusive criteria, hence the mandatory death penalty is, without doubt, untenable in the present Constitutional set up that champions transformation. One key area of transformation should indeed be the total abolition of the death sentence and declaration of its invalidity in the present Kenya.(

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