Report on Successful Capital Defender’s Training
January 3, 2024Life Imprisonment in Kenya: Clarifying the Duration
January 11, 2024
Introduction
The Penal Code Amendment Bill, 2023, was tabled for first reading in the Kenyan Parliament on October 3rd, 2023. The primary objective of this Bill is to amend the Penal Code, Cap 63, Laws of Kenya, with the aim of abolishing the death penalty. The proposed law seeks to amend sections 40, 60, 204, 296 and 297 of the said law, by deleting the word ‘death’ where it appears and substituting it with ‘life imprisonment.’
Although Kenya is an abolitionist country by practice, with the last known execution having taken place in 1987, the reality that the death penalty is a form of punishment in Kenya remains, and the threat of its utilization cannot be ignored. Therefore, this significant development marks a crucial step towards preserving the fundamental right to life, putting an end to cruel and inhumane treatment, and reflecting upon Kenya’s international commitment to the abolition of the death penalty.
Preserving the fundamental right to life
The Constitution permits the deprivation of life to the extent authorized by the Constitution or other written law. However, one of the fundamental aspects addressed by the proposed Bill is the preservation of the fundamental right to life and this consummate removal of the death penalty from Kenyan Statutes is a great step towards upholding the inherent value and dignity of every individual, ensuring their right to exist and be protected by the law.
Putting an end to cruel and degrading treatment
The enforcement of the death penalty often results in cruel and degrading treatment for condemned individuals. The proposed amendment seeks to put an end to the physical and psychological suffering inflicted upon those sentenced to death, recognizing that such punishments violate human rights standards such as the freedom from torture, and cruel, inhumane and degrading treatment of persons on death row. The death penalty contributes significantly to psychological trauma, given that those sentenced to death are left clinging to hope that this harsh punishment will not be implemented against them. Further, the modes of execution in themselves can lead to exceptional pain to the person before they can actually be pronounced dead, as such not only being cruel but utterly inhumane. Death Penalty: an irreversible torture,’ captures the unfortunate and lived reality of those sentenced to death and the finality thereof erases any chance for an appellate process or reprieve in the form of reopening of investigations, etc., especially if the death row inmate was innocent. Also, this abolition campaign is part of an emancipation call by African countries to decolonize its systems and/or laws ‘gifted’ to Africa by former colonizers.
Mitigating psychological trauma
The prospect of facing the death sentence inflicts immense psychological trauma on individuals, their families, and society as a whole. This proposed amendment acknowledges the negative impact of the death penalty on the mental well-being of condemned persons and aims to alleviate this trauma by seeking alternative forms of punishment, as well as rehabilitative efforts with the aim of possible exit from prison, and proper reintegration into society.
Public opinion on the death penalty
Most legal practitioners both in the Bar and Bench (lawyers and judges, respectively) strongly maintain that the death penalty is an effective and adequate penalty which should be maintained in Kenyan statutes. A large portion of the community is also convinced that the death penalty is a proper penalty for capital offences. This belief that the death penalty is a satisfactory and justifiable penalty is based on the fallacy that death penalty acts as a deterrent to atrocious criminal activities. On the contrary, it has been proven that the death penalty does not encumber/thwart crime, and more specifically, capital offences. In fact, states with the death penalty laws do not have lower crime, murder, or capital offences rates than states without such laws. Overall, a lot of civic education needs to be conducted to disaffirming such views/opinions from amongst Kenyans.
Conclusion
In 2015, during its 56th Ordinary Session, the African Commission on Human and Peoples’ Rights drafted a treaty, the Draft Protocol to the African Charter on Human and Peoples’ Rights on the Abolition of the Death Penalty in Africa in a quest to solidify African states’ commitment to abolishing the death penalty. On 25th July 2023, Ghana joined a league of 29 out of 55 African countries that have abolished the death penalty. Through a historic parliamentary action, the Ghanaian Parliament voted to amend their Criminal Offences Act to substitute their death penalty for life imprisonment, according to their parliamentary committee report. This is tremendous news for abolitionist advocates in Africa.
In Kenya, the journey to abolitionism is slow but progressive. Complete abolition of the death penalty is gradually becoming a reality. For example, the Supreme Court of Kenya’s pronouncement in the case of Francis Karioko Muruatetu on the mandatory death sentence being unconstitutional was a step in the right direction. More similar rulings/judgments continue to be pronounced in a move that has been termed as judicial activism. Kenya, as a member of the international community, should demonstrate its commitment to the global community by abolishing the death penalty.
Consequently, commuting persons on death row to life imprisonment by former and present presidents indicates that the country can move from being a de facto abolitionist state to complete abolition by law. Kenya is reminded of its international obligations and commitment to abolish the death penalty by law. Similarly, Kenya should ratify the Second Optional Protocol to the ICCPR on abolition. Our focus remains on the Kenyan Parliament with hopes that it will enact the proposed abolition law.
Find the Bill here http://kenyalaw.org/kl/fileadmin/pdfdownloads/bills/2023/PenalCodeAmendmentBill2023.pdf
By Anne Munyua (https://twitter.com/MurugiMunyua)
Founder and Executive Director,
CELSIR Africa
