The existence of three recent cases on the death penalty all saying something different about the death penalty (see last week’s Katiba Corner) caused uncertainty among lawyers and the courts.
There was some inconsistency in court practice in sentencing those convicted of murder or robbery with violence, while the Penal Code still provided for a savage certainty: Death for both.
The outcome of the appeal to the Supreme Court was of particular concern to Francis Muruatetu and Wilson Mwangi, convicted of involvement in a vicious murder, and sentenced to death, but whose sentences had been reduced to life. They appealed. But thousands of others on “death row”, or already serving life rather than waiting for executions, might be affected by the court’s decision, while many others who care about the justice and humanity of Kenya’s penal system eagerly awaited the decision, in the hope that it would not only reintroduce clarity into the law, but also usher in a new era of criminal justice.
As in the Mutiso case (see last week) the Attorney General and the Director of Public Prosecutions did not oppose the view that a compulsory death penalty is unconstitutional under the current Constitution. Their main concern was how to deal with people already serving sentences imposed under what would be an unconstitutional law.
The Supreme Court’s three reasons
The Supreme Court focussed mainly on one issue. Everyone who is accused of a crime and is prosecuted is entitled to a fair trial. Trials must be conducted by courts that are to be fair and impartial. Sentencing a person convicted of a crime is part of the trial. But in the case of the compulsory death sentence, the job of deciding the sentence has been taken away from the courts by Parliament, which has fixed the same penalty for everyone. In fact on the issue of sentence there is no trial. This is also unconstitutional because no appeal is possible against a mandatory sentence (even an appeal court has no choice about the sentence) but the Constitution guarantees the right of appeal to everyone convicted of a crime.
Thirdly, the Court said the law was unconstitutional because those convicted of offences for which the only sentence is death have no real chance to put to the court any points about how they should be sentenced, arguing things like how sorry they are for what they did, their own poor circumstances, or previous excellent record. But this was discriminatory because people convicted of other offences have this opportunity.
Is it just about murder?
The Court on the face of it decided only that the death penalty is not compulsory in a murder case. However, its reasoning is equally applicable to other offences, especially robbery with violence, clearly a lesser offence than murder. The Supreme Court spoke in a generally approving way about the Mutiso decision — which had suggested that probably the same reasoning applies to other offences as to murder. The Supreme Court did not actually endorse that statement itself. But it would be verging on the ridiculous if the Supreme Court decision was to be treated as having no relevance to robbery with violence.
What is the outcome?
The most difficult issue was what to do about all those people who are on “death row”, or serving life imprisonment because their sentences were changed by a president’s order. The Supreme Court said that they ought to have had a chance to try to persuade the court at their trial that they deserved a sentence less than death – or even than life imprisonment.
The Supreme Court decided that the two men who brought the case to that Court must be given that chance soon. Their case has been sent back to the High Court for a hearing just about their sentences.
For all the other cases, the Court sent the matter back to the Attorney-General, DPP and any other relevant bodies. They must come up with a method for dealing with all those other cases in a fair way. Hopefully the AG — especially as he was not supporting the compulsory death sentence for any offence — will treat this as applying to everyone sentenced to death and still in prison as a result, not just murderers.
The Court gave the AG, etc, one year to work on this and report back. The Court does not say what happens if there is no report back. Please, Mr Attorney-General, treat this as urgent and meet the Court’s deadline.
In all future cases no court should automatically impose the death sentence. The court must decide what is the appropriate sentence for the particular person convicted of the particular offence in the particular cirumstances.
The death sentence can still be imposed
But the Court did not decide that the death penalty itself is unconstitutional. Courts may still apply it when the law allows. But what will happen then? Presidents do not seem to want to sign the death warrant. And we have no hangman. The legal way to execute a person condemned to death is by hanging. And all methods have their own problems. Doctors may refuse to give lethal injections. The electric chair can be a horribly cruel method.
What is life?
In Kenya, life imprisonment has usually meant just that – until the person dies. The Attorney-General (appearing not as the lawyer for the government but as a friend of the court) argued that there should be a possibility of remission or parole for prisoners sentenced to life imprisonment. (As head of the state law office the AG would seem the ideal person to initiate reform of the law in that direction.)
The Supreme Court did not go so far as to make a ruling to this effect. But it did look at a good deal of international law, and the law of some other countries, and said that this convinced it that a life sentence should not necessarily mean the whole life of the prisoner, but could mean a period for which the court could set the minimum or maximum time (did the court mean minimum and maximum?)
So, the Court recommended (not ordered) that the Attorney-General and Parliament should develop law on life sentences. This might perhaps include, the Court said, a minimum number of years before a prisoner is considered for parole or remission, and the possibility that sometimes prisoners under specific circumstances might serve whole life sentences.
To say that the death sentence is the maximum seems to leave it to the court to fix any sentence up to death. But the focus on life imprisonment seems to suggest an expectation that the alternative sentence for murder will be life. If Parliament should change the law to say a person convicted of murder must be sentenced to either death or life does this leave enough choice to the court to permit a fair trial?
If Parliament fixes a high minimum sentence for life, would this be fair or might it be cruel, inhuman or degrading treatment or punishment? In most situations where life imprisonment may be imposed, the court can give a lesser sentence, so it would avoid the impact of a high minimum period for “life”. In a few, however, life is the only possible sentence (notably for “defilement” of a person under 12 ). Is this allowing a fair trial? But perhaps the court was really thinking just about life sentence for murder.
How will the judges and magistrates react to the new breadth of choice this case gives them? Will magistrates feel empowered to follow the Kahinga case (see last week) and award less than death for robbery with violence?
Finally, the Supreme Court emphasised that courts may still condemn convicts to death; but they no longer are compelled to do so. How long before the issue of the constitutionality of the death penalty comes before the courts again?