As Kenya prepares for its review before the Committee on the Elimination of Discrimination Against Women (CEDAW) in June/July 2026, the country stands at a critical intersection of gender equality and criminal justice reform. This moment is not only about assessing progress on women’s rights, but also an opportunity to confront the often-overlooked gendered dimensions of the death penalty.

CEDAW reviews are among the most influential accountability mechanisms in the international human rights system. For Kenya, this cycle arrives at a time when momentum around death penalty reform is steadily building, both domestically and globally.

Kenya’s Evolving Death Penalty Landscape

Over the past few years, Kenya has demonstrated a measurable, though incomplete, shift toward abolition:

1. Renewed Global Alignment
In December 2024, Kenya voted in favour of the United Nations General Assembly resolution calling for a global moratorium on executions. This vote reaffirmed Kenya’s alignment with the growing international consensus that capital punishment is incompatible with human dignity and evolving standards of justice.

2. A Longstanding De Facto Moratorium
Kenya has not carried out executions since 1987, effectively maintaining a de facto moratorium for nearly four decades. However, courts continue to impose death sentences, leaving individuals in prolonged legal uncertainty often described as the “death row phenomenon.”

3. Judicial Developments on Mandatory Sentencing
Following the landmark decision in Francis Karioko Muruatetu & Another v Republic, Kenya abolished the mandatory nature of the death penalty for murder. This opened space for judicial discretion in sentencing and marked a significant constitutional shift toward individualized justice.
However, implementation has remained uneven, and questions persist regarding its application to other capital offences such as robbery with violence.

4. Legislative Reform Still Pending
The proposed Penal Code (Amendment) Bill, 2023 which seeks to replace the death penalty with life imprisonment remains before Parliament. While it has passed committee stage, delays in debate and enactment highlight the gap between policy intent and legislative action.

Why CEDAW Matters for Death Penalty Reform

The death penalty is often treated as a gender-neutral issue. In reality, its impacts are deeply gendered, intersectional, and frequently invisible.

A gender-responsive CEDAW review provides a critical platform to examine how capital punishment affects:

  • Women accused of capital offences, who often face compounded discrimination, including histories of gender-based violence, economic marginalization, mental health illness, illiteracy, and limited access to quality legal representation
  • Women as caregivers and dependents, who shoulder the economic and emotional burden when a family member is sentenced to death
  • Children of death row prisoners, particularly girls, who experience disrupted education, stigma, and long-term psychosocial harm
  • Women in prison systems, where access to mental health care, reproductive health services, and legal aid remains inconsistent

Importantly, many women affected by the death penalty exist at the intersection of multiple vulnerabilities such as poverty, rural marginalization, low literacy, and exposure to violence, yet their experiences remain under-documented.

Critical Gaps

As Kenya approaches its 2026 review, several gaps require urgent attention:

1. Data Deficits
There is limited sex-disaggregated data on individuals sentenced to death and on families affected by capital punishment. Without this, gender-responsive policymaking remains constrained.

2. Legal Aid and Representation

Despite constitutional guarantees, access to competent legal representation, particularly at trial and sentencing, remains uneven. While Article 50(2)(h) of the Constitution provides for state-funded legal counsel where substantial injustice would otherwise result, in practice this protection is largely operationalized in the capital offence of murder, leaving many accused persons facing other serious charges without representation.

Women, particularly those in rural and marginalized contexts, are disproportionately affected by this gap. Those charged with offences such as robbery, drug-related offences, or offences linked to survival economies, are often required to navigate complex legal proceedings unrepresented. This not only undermines fair trial rights but also exacerbates existing inequalities, as many of these women lack the financial means, legal literacy, or social support necessary to mount an effective defence.

The result is a two-tiered justice system, where access to legal representation, and by extension, access to justice, is implicitly determined by the nature of the charge rather than the vulnerability of the accused.

3. Psychosocial and Economic Impact
The long-term mental health consequences for families of death row prisoners are rarely addressed in policy or programming. Widows, mothers, and daughters often absorb these burdens without state support.

4. Sentencing Inequalities
Post-Muruatetu, disparities in sentencing practices persist, raising concerns about consistency, fairness, and implicit bias.

5. Lack of Gender-Sensitive Clemency Processes
Mercy and commutation frameworks rarely incorporate gender analysis, despite the known vulnerabilities of affected women and families.

What Has Been Overlooked: Persistent Barriers to Women’s Access to Justice

While Kenya has made notable strides in implementing Article 48 of the Constitution and aligning with CEDAW General Recommendation No. 33, Kenya’s current reporting framework risks presenting a formalistic picture that does not fully reflect the depth and complexity of barriers experienced by women and girls.

1. The Gap Between Legal Frameworks and Lived Reality
Despite progressive laws such as the Legal Aid Act and the Victim Protection Act, access to justice remains uneven and, in many instances, inaccessible. Legal empowerment programs, while impactful, often do not reach women in remote, informal, or conflict-affected settings, where legal need is most acute.

2. Geographic and Economic Inequality
The establishment of Gender Justice Courts is commendable, but their limited number means that many women, particularly in rural counties, must travel long distances at significant cost. For indigent women, the cost of transport, documentation, and time away from income-generating activities creates a de facto barrier to justice.

3. Quality and Continuity of Legal Representation
Access to legal aid does not always translate into effective legal representation. Many women encounter:

  • Delays in assignment of counsel
  • Overburdened legal aid providers
  • Limited follow-through in appeals or post-conviction processes
  • In-effective assistance of legal counsel

This is particularly critical in capital and serious criminal cases, where inadequate representation can have irreversible consequences.

4. Gender Bias and Institutional Attitudes
Women navigating the justice system, especially survivors of sexual and gender-based violence, continue to face:

  • Victim-blaming attitudes
  • Invasive and retraumatizing procedures
  • Low conviction rates despite reporting

Even within specialized courts, implementation of trauma-informed approaches remains inconsistent.

5. Intersectional Vulnerabilities
Women do not experience justice barriers uniformly. Those at the intersection of multiple vulnerabilities face compounded exclusion, including:

  • Women with disabilities (physical inaccessibility, lack of interpretation services)
  • Refugee and migrant women (documentation barriers, fear of authorities)
  • Women in conflict with the law (stigma, lack of reintegration support)
  • Women affected by the death penalty (as accused persons or family members)

These groups remain largely invisible in official reporting.

6. Informal Justice Systems and Harmful Norms
In many communities, disputes, especially family and sexual violence cases, are resolved through informal or traditional mechanisms. While accessible, these systems often:

  • Reinforce patriarchal norms
  • Prioritize reconciliation over accountability
  • Undermine women’s autonomy and rights

There is limited state oversight to ensure compliance with constitutional and human rights standards.

7. Delays and Procedural Barriers
Systemic delays, case backlogs, and procedural complexity continue to discourage women from pursuing justice. Adjournments, lost files, and prolonged timelines disproportionately affect women with caregiving responsibilities.

8. Psychosocial and Safety Concerns
Fear of retaliation, lack of witness protection, and absence of psychosocial support services deter many women from reporting violations or sustaining cases through trial.

The Missing Link: Data, Accountability, and Gender-Responsive Reform

A critical gap in Kenya’s response is the absence of comprehensive, sex-disaggregated data on:

  • Legal aid uptake and outcomes
  • Case progression and attrition rates
  • Experiences of marginalized groups within the justice system

Without this, it is difficult to measure impact, identify gaps, or design responsive interventions.

Moreover, there is limited emphasis on accountability mechanisms to assess whether existing laws and institutions are delivering substantive access to justice.

The Role of Civil Society

As Kenya moves toward its CEDAW review, civil society organizations have a vital role to play in bridging these gaps.

A coordinated shadow report bringing together legal aid actors, prison reform advocates, gender justice organizations, and researchers can:

  • Elevate lived experiences of affected women and families
  • Provide evidence-based recommendations
  • Push for alignment between Kenya’s international commitments and domestic practice

The Centre for Legal Support and Inmates’ Rehabilitation (CELSIR) is uniquely positioned to contribute to this process through its frontline legal representation, prison monitoring, and community engagement work.

In addition, there is an opportunity to strengthen advocacy through data-driven approaches, including public perception surveys, community-based research, and documentation of lived experiences.

Looking Ahead: From Moratorium to Abolition

Kenya’s upcoming CEDAW review is more than a reporting exercise—it is a moment of reckoning and possibility.

It is an opportunity to:

  • Centre the voices of women and marginalized communities
  • Address structural inequalities within the justice system
  • Move beyond symbolic commitments toward concrete legal reform
  • Transition from a de facto moratorium to full abolition

Kenya has already signaled its direction. The question now is whether it will take the final, decisive steps.

For organizations like CELSIR, this is a moment to deepen engagement, amplify evidence, and help shape a justice system grounded not only in legality but in dignity, equity, and humanity.

Moving Forward

To fully realize Article 48 and the vision of Convention on the Elimination of All Forms of Discrimination Against Women, Kenya must move beyond institutional expansion toward transformative access to justice—one that is:

  • Accessible (geographically and economically)
  • Available (adequate infrastructure and personnel)
  • Acceptable (free from bias and responsive to women’s realities)
  • Accountable (data-driven and subject to oversight)

Civil society, including organizations like CELSIR, plays a critical role in bridging this gap, documenting lived experiences, providing legal support, and holding systems accountable.

Article by:
Anne Munyua
Founder & Executive Director, CELSIR