Chief Justice Martha Koome has presented two bills to Parliament, the Criminal Procedure Code (Amendment) Bill, 2023, and the Penal Code (Amendment) Bill, 2023, that seek to reform the country’s approach to capital offences.
The current legal framework, originating from Britain in the 1930s, prescribes the death penalty for offences such as murder, robbery with violence, and treason.
Justice Koome’s proposal suggests replacing terms like manslaughter with second-degree murder and outdated language like “idiots” or “imbeciles” with “intellectual and psychosocial disability.”
Under the proposed changes, murder will be categorized into three levels. First-degree murder convicts may face the death penalty, while second-degree murder would entail life imprisonment.
Additionally, new categories, first-degree robbery and second-degree robbery, are introduced. Those who commit aggravated crimes involving weapons, harm, or chemicals might face the death penalty, while second-degree robbery could lead to life imprisonment.
However, an alternative proposal suggests completely abolishing the death penalty, replacing it with a life sentence for capital offences.
Overhaul Criminal Procedure Code
If accepted, these amendments would mark the most comprehensive overhaul of Kenya’s criminal procedure code and penal code in the country’s history.
Notably, the only existing method of executing death row prisoners in Kenya is hanging. The last execution took place on July 9, 1987, when Hezekiah Ochuka was hanged at Kamiti Prison after being found guilty of involvement in the 1982 coup attempt.
In the subsequent years, those sentenced to death awaited execution, although the mandatory death sentence was declared unconstitutional by the Supreme Court in a case brought by Francis Muruateru and Wilson Mwangi.
Following this decision, then-President Mwai Kibaki commuted the sentences of all death row inmates to life imprisonment. However, a life sentence in Kenya effectively meant imprisonment until natural death.
The proposed changes also include provisions that would limit the President’s authority to determine the duration of incarceration for mentally ill individuals and minors. Instead, those found guilty but mentally ill will be transferred to mental health facilities for evaluation.
Furthermore, the Judiciary’s proposal suggests repealing laws criminalizing prostitution and related activities. It also addresses the rights of intersex individuals.
If these significant amendments are enacted, they could reshape the country’s approach to capital offences and justice for those affected by these changes.
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