Nairobi, March 7, 2018, by department of Public Communications.
The Supreme Court of Kenya did not abolish the death sentence in December 2017 but rather gave courts the discretion of sentencing similar cases on an individual basis.
The Supreme Court Ruling of 14 December 2017 in Petition No 5/2015 between Francis Karioko Muruatetu and another versus the Republic of Kenya ordered the Attorney General, Director of Public Prosecutions and other relevant agencies to, within 12 months; prepare a detailed professional review in context of that judgement and set up a framework to deal with sentence re-hearing of cases similar to that one ruled upon.
The Taskforce Committee draws its membership from the Judiciary, Office of Director of Public Prosecutions (ODPP), National Crime Research Centre (NCRC), the Power of Mercy Advisory Committee (POMAC), Kenya Law Reform Commission (KLRC), Parliament, Kenya National Commission on Human Rights (KNCHR), the Ministry of Interior and the Office of Attorney General and Department of Justice (OAG & DOJ) as the chair of the Committee.
In the 25-page ruling, the Supreme Court led by Chief Justice David Maraga declared unconstitutional ‘the mandatory nature of the death sentence as provided under section 204 of the Penal Code.’ This ruling however, does not abolish the death penalty as stipulated in Article 26(3) of the Constitution nor does it mean it is the only sentence for the crime of murder. The case had been filed by Francis K. Muruatetu and Wilson T. Mwangi who had been convicted of the 4th Feb 2000 murder of city land dealer Lawrence Githinji Magondu.
Chapter Four of the Constitution on the Bill of Rights entitles any accused person the right to a fair trial including the right to petition the High Court for a new trial while taking into consideration the rights and fundamental freedoms of individuals. In the Supreme Court ruling, the judges court stipulated it was incumbent that life and meaning be given to the Bill of Rights as enshrined in the Constitution. The ruling further provided for the review of laws that had been caught up in a time warp rendering them irrelevant. The sentencing policy guidelines provided by the Judiciary present the mitigating factors applicable in a re-hearing for the conviction of murder to take into consideration several factors. These include the age of the offender, being the first offender, whether the offender pleaded guilty, character and record of the offender, commission of the offence in response to gender based violence, remorsefulness of the offender, the possibility of reform and social adaptation of the offender as well as any other factor that the court considers relevant.
Presently, the Kenyan Penal Code provides for a mandatory death penalty for five (5) crimes, namely, murder, robbery with violence, attempted robbery with violence, administering an oath purported to bind a person to commit a capital offence and treason. There are several military offences punishable by death under the Kenya Defenses Act 2012. In Africa, 20 member states of the African Union had by July 2017 abolished the death penalty while 18 states apply a de facto moratorium (law on death penalty is in place but is not used) on capital punishment with 16 states retaining the death penalty. While Kenya applies a de facto moratorium on the death penalty, in October 2016, President Uhuru Kenyatta commuted the death sentences of all 2,747 convicts who had been on death row to life imprisonment.
The Taskforce on the Implementation of the Supreme Court Ruling on the Death Penalty has the critical task of receiving submissions from the public on the matter. Arguably, the public needs to understand the significance of the ruling and how it will be implemented while being enlightened that the death penalty is still in existence. Pertinent to this include the concern of re-hearing and re-sentencing of cases; the determination of life sentences and what will constitute the minimum versus the maximum sentence and as to whether this determination of the life sentence will be a legislative or judicial mandate. Other concerns in the discourse of the removal of the mandatory death sentence include the implementation of the Victim Protection act 2014, the recourse to alternative dispute resolution in criminal matters as well as establishment of the restorative justice policy within the ambit of international human rights law.
The Taskforce secretariat chaired by the Secretary of Justice and Constitutional Affairs, Mrs. Maryann Njau-Kimani is expected to hold stakeholder consultation forums, sensitize the public in different parts of the country before submitting its recommendation to the Attorney General within a period of 8 months.