By Frankline Mbogori
On December 14th 2017, the Supreme Court of Kenya delivered a landmark judgment pronouncing the mandatory nature of the death penalty unconstitutional. In Francis Karioko Muruatetu & another v Republic [2017] eKLR (Muruatetu) the issue before the court was whether Section 204 of the Penal Code, which decrees a mandatory death penalty for the offence of murder, offended the 2010 Constitution.
The petitioners raised weighty constitutional questions which may be summarized as follows: Firstly, that the mandatory nature of the death penalty under Section 204 of the Penal Code takes away judicial discretion and replaces it with legislative fiat hence offending the doctrine of separation of powers. Such denial of discretion, the petitioners argued, offends the right to a fair trial which is guaranteed under Article 50(2) of the Constitution. Secondly, that the mandatory nature of the death penalty denies murder convicts an opportunity to appeal the sentence and this offends the right to a fair hearing of which right to appeal is a critical component. In any case, the Petitioners argued, Section 261 of the Criminal Procedure Code limits second appeals to convictions only.
The court’s verdict was unanimous. On the violation of the right to a fair trial, the court observed that the prevailing global trend was against the mandatory nature of death penalty. They concluded that Section 204 of the penal code offends several provisions of The Bill of Rights Chapter and could therefore not survive the judicial scrutiny. The court notes at paragraph 40 of the judgment:
These constitutional provisions and those of the ICCPR bring to the fore a number of principles. Firstly, the rights and fundamental freedoms belong to each individual. Secondly, the bill of rights applies to all laws and binds all persons. Thirdly, all persons have inherent dignity which must be respected and protected. Fourthly, the State must ensure access to justice to all. Fifthly, every person is entitled to a fair hearing and lastly, the right to a fair trial is non-derogable. For Section 204 of the Penal Code to stand, it must be in accord with these provisions.
The court further proceeds at paragraph 41:
It is evident that the trial process does not stop at convicting the accused. There is no doubt in our minds that sentencing is a crucial component of a trial. It is during sentencing that the court hears submissions that impact on sentencing. This necessarily means that the principle of fair trial must be accorded to the sentencing stage too.
The court was unequivocal that mitigation is an important element of a fair trial. Under Article 25(c) of the Constitution, the right to a fair trial cannot be limited and may never be taken away from an accused person. Furthermore, allowing some offenders to mitigate while denying others the same opportunity is a breach of the right to equality before and under the law. The court observes at paragraph 63 of the judgment:
Article 27 of the Constitution provides for equality and freedom from discrimination since every person is equal before the law and has the right to equal protection and equal benefit of the law. Convicts sentenced pursuant to Section 204 are not accorded equal treatment to convicts who are sentenced under other Sections of the Penal Code that do not mandate a death sentence. Refusing or denying a convict facing the death sentence, to be heard in mitigation when those facing lesser sentences are allowed to be heard in mitigation is clearly unjustifiable discrimination and unfair. This is repugnant to the principle of equality before the law. Accordingly, Section 204 of the Penal Code violates Article 27 of the Constitution as well.
A keen reading of the Murautetu judgment leaves one with the impression that the Supreme Court based its decision on an expansive reasoning anchored on Human Rights principles of human dignity, access to justice, fair trial, and equality and non-discrimination. Consequently, one would expect the court’s ratio to have a general application. In any case, this was a judgment in rem. Accordingly, the recent pronouncement by the same court that the Muruatetu decision can only apply to murder cases came as a shocker. Does this mean that the right to a fair trial may be granted in certain categories of offences while being denied in others? In other words, if the imposition of mandatory sentences or denial of judicial discretion offends the right to a fair trial, should it not follow that the principle ought to apply universally?
A keen reading of the Murautetu judgment leaves one with the impression that the Supreme Court based its decision on an expansive reasoning anchored on Human Rights principles of human dignity, access to justice, fair trial, and equality and non-discrimination. Consequently, one would expect the court’s ratio to have a general application. The recent pronouncement by the same court that the Muruatetu decision can only apply to murder cases came as a shocker. Does this mean that the right to a fair trial may be granted in certain categories of offences while being denied in others? In other words, if the imposition of mandatory sentences or denial of judicial discretion offends the right to a fair trial, should it not follow that the principle ought to apply universally?
Author (Frankline Mbogori)
Mandatory Minimums
Mandatory minimum sentences have historically been used as a penal solution against a core set of serious offences such as murder, treason, drug offences, and violent crimes, among others. In most jurisdictions, legislatures enjoy the constitutional power to establish criminal offences and to set the punishment thereof. The issue that has always stoked controversy is whether or not there exist limits on parliament’s power to impose penal sanctions. What is the constitutional validity of laws imposing mandatory minimum sentences? Do such laws violate the doctrine of separation of powers? Would such laws be offensive to the progressive Bills of Rights that are a hallmark of modern constitutions?
A review of international jurisprudence on this question reveals that mandatory minimum sentences are not unconstitutional per se but they have a potential of producing unconstitutional outcomes through disproportionate sentences. Nonetheless, some still hold the view that sentencing is an exclusive function of the courts, and a law purporting to prescribe the manner and outcome of the exercise of this jurisdiction is constitutionally suspect.
The issue that has always stoked controversy is whether or not there exist limits on parliament’s power to impose penal sanctions. What is the constitutional validity of laws imposing mandatory minimum sentences? Do such laws violate the doctrine of separation of powers? Would such laws be offensive to the progressive Bills of Rights that are a hallmark of modern constitutions?
Author (Frankline Mbogori)
Most recently, the Supreme Court of Canada, while denouncing mandatory minimum sentences in The Queen v Nur, held that mandatory minimum sentences have the potential to depart from the principle of proportionality in sentencing and are therefore blunt instruments that deprive courts of the ability to tailor proportionate sentences. The court emphasized the need to individualize criminal sentences. Hence, while the court did not pronounce mandatory minimum sentences unconstitutional, the proportionality of such sentences must be constitutionally valid. Similarly, the Privy Council, in Reyes v The Queen (Reyes), was of the view that penological reasons such as general deterrence cannot justify a grossly disproportionate sentence. In Reyes, the court did not express its view on the constitutionality of any mandatory sentence other than the one at issue. The cautious approach adopted by the Privy Council appears to have influenced the Kenyan Supreme court on its new guidelines limiting the applicability of Muruatetu to murder cases only.
The Dilemma
As we have already seen, the justification given by the Supreme Court in abolishing the mandatory nature of the death penalty as provided under Section 204 of the penal code is anchored on varied human rights principles, such as the right to a fair trial and freedom from discrimination. Does it then follow that fair trial and non-discrimination guarantees are applicable in some categories of offences and not others? The court was, for instance, categorical at Paragraph 63 of its judgment that:
“Refusing or denying a convict facing the death sentence, to be heard in mitigation when those facing lesser sentences are allowed to be heard in mitigation is clearly unjustifiable discrimination and unfair. This is repugnant to the principle of equality before the law.”
Supreme Court of Kenya.
I submit that by this reasoning, offenders under the Sexual Offences Act, treason convicts, as well as robbery with violence convicts would all be entitled to a fair trial and non-discrimination under Articles 50 and 27 of the constitution respectively. No wonder then that lower courts have interpreted the Muruatetu judgment to be applicable to other offences which impose a mandatory minimum sentence, necessitating the issuance of the new guidelines.
Penal Populism
The current global trend is in favour of doing away with mandatory sentencing models. Does the diminishing traction of mandatory minimum sentences mark the triumph of human rights approach over classical penal theories? This appears to be the case. The claims by Utilitarians, for instance, that criminal sanctions should aim to maximize societal happiness would fly in the face of the Bill of Rights which seeks to secure the minorities against majoritarian tyranny which is common in democratic systems. Consequently, penological goals of deterrence and retribution cannot be pursued in total disregard of human rights. In any case, Article 259 decrees that the constitution ought to be interpreted in a manner that advances the rule of law and the human rights and fundamental freedoms in the Bill of Rights. This means that penal populism that is a typical feature of laws such as the Sexual Offences Act (SOA) might not survive serious judicial scrutiny if pitted against the Bill of Rights chapter.
While the necessity of the SOA is obvious in a society with a fair share of sex predators, where women and underage girls live in perpetual fear of rape and defilement, some elements of the sentencing policy of the Act make a good example of penal populism riding on the wave of critical legal ideologies that may have little connection with the intended objective of deterrence. In most cases, such laws are enacted not to achieve penal objectives but for political or ideological reasons. In fact, empirical evidence suggests that mandatory minimum sentences do not necessarily deter crime. A better version of such laws would at least entail designing them with a “pressure valve” in the form of a “judicial discretion clause” that allows the judge to consider a lesser sentence where exceptional circumstances exist, which is the practice in other jurisdictions such as South Africa. If this does not happen, such laws will eventually be swept aside by the prevailing global tide against mandatory minimum sentences.
fmbogori1@gmail.com; @Kabakuambogori
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