Understanding the death penalty

You will certainly know that the Supreme Court recently made an important decision about the death penalty: The punishment that would, if carried out, mean that a person convicted of certain crimes would himself or herself be killed.

The case turns out to be hard to explain, so this is a two-part affair.


Our written laws have said that anyone convicted of certain crimes must be sentenced to death. These are treason, taking an oath to commit an offence that would be punished by the death penalty (even if that offence is not committed), murder, certain sorts of robbery or even attempted robbery, and (for members of the military) aiding the enemy.



In Kenya, no-one has actually been killed by the state in fulfilment of a sentence of death since 1987. Those executions were of people convicted of treason — in connection with the coup attempt of 1982.

People sentenced to death lived for years, thinking that maybe they would be executed, not allowed to work (because work is supposed to be part of the reformation of prisoners and those to be executed are not going to be reformed). It’s no holiday: Locked up most of the day, no useful activity, away from family, poor food.

But President Mwai Kibaki in 2009 and President Uhuru Kenyatta in 2016 ordered that the sentence of everyone (there were thousands) sentenced to death changed to one of life imprisonment. But “life” in Kenya is assumed to be until the person dies. Very few are released before then. Unlike other prisoners, “lifers” have no chance of being released early if they work hard and behave well in prison — other prisoners may get up to half their sentences remitted on this basis. Lifers’ only hope is the possibility of applying once, or maximum twice, through the Committee on the Power of Mercy for a reduction of sentence.



Now a minority of countries have the death penalty in their law for ordinary crimes (treason might still attract the penalty). Why is it controversial?

There is the moral issue: Many people worry about whether it is right for the state (in the name of the people) deliberately to kill a person (except in wartime).

You might say, “Someone who kills another person deserves to die”. But a little more thought may show that this is a very superficial approach. In many traditional societies, a murderer was not, or rarely, killed: More often, compensation would be paid by the community of the killer to that of the victim. And we do not actually apply the eye for an eye approach. A person who puts out another person’s eye does not have their own eye put out by way of legal punishment. Why not?

Mainly because we hope that the criminal, although punished, can eventually become a useful member of society, perhaps persuaded to repent during a period in prison — maybe even trained in a useful trade, or catching up on their education. We might feel uneasy about the state putting out an eye, and incidentally making it less likely that the criminal would be able to lead a productive life in future.

The person executed will never commit any murder again. But will that death deter anyone else from committing murder? A lot of research suggests that it may not — or at least that lesser sentences would be equally effective. The research is enough to make many people feel that they cannot justify the death penalty on the basis that it deters others.

In the UK, a major factor turning even the police, and the judges, away from supporting capital punishment was the realisation that a significant number of people had been found guilty of murder by a court — and executed — when they were not in fact guilty. This is one mistake that cannot be rectified.



In Kenya, there is another cause for concern. Certain sorts of robbery are said in the law to be punishable with death: If the robber was armed with some dangerous thing, uses any personal violence or is not alone in the crime. Far more people have been sentenced to death for robbery with “violence” than for murder. I have heard a lawyer say “one of my clients was sentenced to death because, while someone else lifted a girl up, my client took away her shoes” — robbery done by more than one person, so punished with death.



Three cases have been particularly interesting. In 2010, just before the Constitution was adopted, the Court of Appeal decided to allow only the death penalty for murderers was unconstitutional, because it did not allow the courts to discriminate between the very many situations that may lie behind the conviction for murder (in the Godfrey Mutiso v R Case). Different degrees of cruelty in the killing, different motives, different circumstances of the person should all be able to affect the sentence.

Sentencing is part of the trial and everyone is entitled to a fair trial. Judges conduct trials, and Parliament should leave the final decision to the courts, with the death sentence as just the maximum possible. The Court of Appeal said the old Constitution did not say death must be the only penalty, but just recognised the death penalty as a possibility.

The Attorney General and Director of Public Prosecutions, in court, did not disagree.

In 2013 the Court of Appeal produced a disappointing decision in a robbery with violence case (in the case of Joseph Mwaura & Others). It disagreed with the Mutiso decision. The Mwaura case was maybe not well argued. It does not seem that there was a clear attack on the compulsory nature of the death penalty, only a not very well presented one on the whole idea of a death penalty. And, apparently, the point that sentencing is an issue for judges not Parliament was not argued. But overall, the case shows a weak understanding on the part of lawyers and the court of the power of the Constitution, and the role of the courts.

Last year, the High Court took a slightly different approach to robbery cases (Kahinga case). The three judges said that the Penal Code is really unclear about when robbery (punishable with up to seven years in prison) becomes robbery with violence (must be punished with death). This goes against the constitutional principle that law that takes away liberty (or life) must be clear. The court also stated — going against the Court of Appeal — that courts did not have to impose the death sentence against people charged with capital offences.

That court gave the Attorney General, with the Law Reform Commission and others, 18 months (until March 15, 2018) to produce a solution so Parliament can change the law to sort out the uncertainties the court identified. And within the same period, the AG should devise a plan for dealing with people who had been already convicted and sentenced to death on the basis of these now doubtful provisions of the Penal Code.



Meanwhile, in 2003, several people were convicted of a murder and sentenced to death. They appealed to the Court of Appeal. At that time there was no Supreme Court. The appeal was decided by the Court of Appeal in 2011 (after the Mutiso case but before Mwaura). The court said it would decide whether the original sentence was lawful, but in fact it focussed on whether the appellants were guilty, and never got to the question of the validity of the death sentence. This is odd because two of the three judges had been involved in the Mutiso case.

Then those whose convictions had been upheld by the Court of Appeal appealed to the new Supreme Court. The case was argued before the Court three times. And after the final time, the court delayed delivery of judgment for a whole year. What it finally decided is the subject of the next article.



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