Attorney General Prof Githu Muigai making submissions at the Supreme Court with Waikwa Wanyoike and Christine Nkonge in the background
On the 13th of December 2016 the Supreme Court, now fully constituted, sat to hear an application that had been brought by two convicts previously on death row [The convicts’ death sentence was commuted to life imprisonment by former President of the Republic, Hon. Mwai Kibaki, on 3rd August 2009]. The bench was constituted to hear Petitions Number 15 and 16 of 2015 lodged by Francis Karioko Muruatetu and Wilson Thirimbu Mwangi.
On 12 March 2003 the Petitioners/Appellants were convicted of murder in violation of section 203 of the Penal Code and were sentenced to death as mandated by section 204 of the Penal Code. The Petitioners’ appeal to the Court of Appeal was dismissed and their conviction became final on 20 May 2011. The two Petitioners appealed to the Supreme Court in 2013 and 2014 (Petition No. 8 of 2013 and Petition No. 1 of 2014 respectively). The two Petitions were later withdrawn. The Petitioners filed the current Petitions of Appeal on 27th August 2015.
Katiba Institute and 3 other organisations were admitted as amici curiae on 28th January 2016 as constitutional and human rights experts to assist the court in reaching a just decision.
The Katiba Institute was represented by its lead counsels, Waikwa wanyoike and Christine Nkonge.
Submissions of Katiba Institute
The grounds and issues framed for determination by both Petitioners were similar; they were:
- Is the sentence of death under Kenyan law unconstitutional?
- Are the various provisions of the Penal Code that impose a mandatory sentence of death unconstitutional?
- Is an “indeterminate” life sentence unconstitutional?
- What remedy should the Court grant to the Petitioners?
Katiba Institute’s submission to the court was that to the extent that section 204 of the Penal Code prescribes a mandatory death sentence, it violates the Petitioners’ rights to be free from cruel, inhuman, and degrading treatment under Arts 29(f) and 25(a); their rights to a fair trial under Arts 50(1) and (2) and 25(c); the separation of powers doctrine articulated through Chapters 9, 10, and 11 of the 2010 Constitution; and the authority and independence of the Judiciary under Arts 159 and 160; and it is inimical to the relevant international law and customs and hence a violation of Arts 2(5) & (6) of the Constitution.
“Cruel, inhuman or degrading punishment”
Article 29(f) of the 2010 Constitution identifies “freedom from torture and cruel, inhuman or degrading treatment or punishment” as a fundamental freedom that, under Art 25(a), must not be limited. There has been near-universal recognition that the mandatory death penalty violates the rights and freedoms protected under Article 29(f) because it denies the offender an opportunity for an individualized sentence that takes into consideration factors relating to the offender. The Supreme Courts of Uganda and the High Court of Malawi are among the many that have reached this conclusion. As the Ugandan Supreme Court held in Attorney Gen v Kigula, et al  UGSC 6, 42 “not all murders are committed in the same circumstances, and all murderers are not necessarily of the same character.” A failure to recognize both the differences in the individual offenders and the differences in the respective crimes deprived an offender of his right to a sentence tailored to his specific circumstances. In Kafantayeni v Attorney Gen  MWHC 1, 9, the High Court of Malawi has also held the mandatory death penalty violated the right to be free from inhuman treatment or punishment because it did “not allow for individualized consideration of the offender and the commission of the offence.”
“Right to Fair Trial”
In criminal cases, the right to a fair trial encompasses both the determination of guilt and the sentencing phases of the trial. As the Malawi High Court explained in Kafantayeni, “…the principle of ‘fair trial’ requires fairness of the trial at all stages of the trial including sentencing”. The Kigula court agreed: “a trial does not stop at convicting a person. The process of sentencing a person is part of the trial”.” Article 50 guarantees the right to a fair trial and, in accord with Kafantayeni and Kigula, includes the right to a fair sentencing. A sentencing process that does not consider the character of the offender or the circumstances of the offence treats all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subject to the blind infliction of the penalty of death.
To meet the standards of fairness required in sentencing, the Court must allow an accused person to present mitigating factors and, in turn, must be able to take those factors into account in tailoring an appropriate sentence in light of the individual offender and the circumstances of the offence. Because section 204 prohibits the offender from presenting such mitigating evidence to the Court in a meaningful way, it deprives the offender of his right to a fair trial under Art 25(c). In addition the right to a fair trial also includes the constitutional right “to appeal to, or apply for review by, a higher court as prescribed by law.” (Art 50(2) (q)). Because the death penalty is mandatory under section 204, the accused are deprived of the opportunity to appeal against the sentence.
“Separation of powers and an Independent Judiciary”
The Constitution of Kenya 2010 is premised on the separation of governmental powers among the executive, parliament, and the judiciary. Parliament determines what conduct should be criminally sanctioned, but it is the judiciary that is vested with the authority to try and sentence those who have been accused and convicted of crimes. A fair trial requires sentencing that takes into account the nature of the offender, the circumstances of the offence and other factors before a sentence is imposed. Section 204, however, prevents the Court from exercising its discretion in sentencing and, thus, leaves Parliament in control of the outcome in all murder cases. Once the judiciary has been deprived of its discretion in the most significant of cases, it has been “degraded to the position of simply rubber-stamping the only punishment which the legislature prescribed.” In the view of the Amici, shifting the sentencing discretion from the trial judge to the legislature or the executive (in the case of commutation) removes it from a credible independent actor who can assess case-specific evidence, including the credibility of the parties and who has the benefit of interacting with legal representatives in an adversarial proceeding that not only safeguards the rights of the accused person but also protects the reputation of the administration of justice.
All parties were heard and now the Supreme Court will deliberate and issue a judgment on the same.