No execution since 1987, so a death sentence can mean life, limbo or eventual pardon.

When the death penalty was still imposed (and carried out) in England, judges would put on a formal black cap and pronounce: “You are sentenced to be taken hence to the prison in which you were last confined, and from there, to a place of execution where you will be hanged by the neck until dead, and thereafter, your body buried within the precincts of the prison, and may the Lord have mercy upon your soul.”

The “Jowie case”

Maybe you had the unusual experience, last week, of watching Justice Nzioka sentence one Joseph Irungu to death. She simply said he would be put to death in accordance with the Prisons Act. She did explain why she was imposing it – in view of the fact that, since the Muruatetu case in the Supreme Court, judges have a choice of whether to impose this sentence or not.

I must say I was doubtful about some of her reasoning, especially two elements: that the murder was gruesome, and that Irungu was not a very nice person, including having two sides to his character – the apparently religious and the murderous.

Being a repeat offender particularly for the same sort of offence is often a factor in choice of sentence. But in this case, Irungu had not killed before, and his nasty behaviour seemed to be of a somewhat different sort – and not things of which he had been convicted.

I stand by what I wrote years ago about Indian judges who were trying to make sense of a Supreme Court decision that death sentences would be imposed only in the “rarest of rare cases”. I commented, “The use of language like ‘gruesome’, ‘detestable’ (are there any non-detestable murders?) and so on seems to be a substitute for thought rather than a way of encapsulating a rational process.”

Great suffering inflicted on the victim by the accused would be a rational factor in sentencing – but that is different from gruesomeness. Again, “verging on insanity” was problematic as a reason. Insanity is not a sin, and indeed insanity that made a person unable to decide rationally to commit murder will mean they are not held legally liable for it (“Guilty but insane” – an illogical verdict that is still part of our law).

Maybe these issues will be aired on appeal.

New Kenyan Sentencing Guidelines for courts were published in 2023 and include a variety of aggravating circumstances in murder cases (which might indicate the death penalty) but do not include such emotive terms – nor the general character of the accused.

What actually happens in Kenya?

The media seem to have grasped that no one actually gets killed in Kenya in fulfilment of the death sentence, not since 1987. We have no executioner. You may think that is not important, but executing someone by means of hanging – the method required by our law – is a highly skilled matter. The leading Ugandan case on the death penalty has a quite “gruesome” account of the process and what can go wrong (https://tinyurl.com/KigulaDP). Nor are other methods better, a Royal Commission on Capital Punishment reported in the UK in 1953. It had reviewed various methods used – hanging, the guillotine, (France) and the gas chamber, lethal injections, firing squad and electrocution (the US) and recommended the continuation of hanging as the method in the UK (in fact, the death penalty was never used after their report).

In Kenya, a person sentenced to death remains “on death row” (unless an appeal is successful or a pardon given) until eventually the President commutes the sentence to life. Recent Presidents have commuted all death sentences (several thousand each time): Kibaki 2009, Kenyatta 2016, Ruto 2023. Since the Constitution, this is on the advice of the Committee on the Power of Mercy, POMAC (Article 133).

Comment

Think about that. In 2023 some people had served six years theoretically on “death row” while others perhaps a few months. Imagine their psychological state. No doubt they have been told they won’t be hanged. But they must live in some fear and uncertainty – and for very different periods of time depending on factors beyond their control. Is this constitutional, or cruel and inhuman punishment (Article 29(f))?

It has something in common with the “At the pleasure of the President” sentence that the law prescribed for people found “guilty but insane” or for child offenders. The courts in Kenya have declared this unconstitutional. A major reason was that it puts the sentencing power in the hands of the President not the Judiciary.

Judges imposing “death” pass one sentence that will not be carried out, leaving the actual sentence in the hands of POMAC and the President, who decide the duration of a “death row” sentence for those already sentenced and even what replaces death. POMAC includes the Attorney General and the Cabinet Secretary responsible for corrections (currently Kithure Kindiki).

There is nothing wrong with the idea of POMAC, but it is designed, I suggest, to deal with situations that arise after sentencing – in the light of the individual prisoners’ progress in rehabilitation or policy decisions. They are a substitute for the old system of the President being able to pardon people or reduce sentences often for political reasons. They are not meant to be a routine part of the sentencing system. The judge sees the prisoner and hears the evidence; is POMAC not in a less favourable position to make a judgment?

What do judges think they are doing?

Though I am sure the judges believe they are acting in the public interest, I do wonder why a judge would sentence a person to death, knowing full well that no execution will take place.

I assume that a central intention is to emphasise the severity of the offence. It may also be a sort of declaration that they believe in the death penalty.

Do the judges hope somehow to satisfy the family of the deceased? If so, isn’t this a sort of fraud on them – because the person will not be executed?

And what does it do to the family of the accused? Do they believe their member will actually die by hanging? If so, isn’t this another cruel sort of fraud?

Is the idea to impress the public with the judicial toughness? Or do they imagine this will enhance the deterrent effect of the sentence? Again a sort of deceit. In reality, the evidence is that the death penalty is not an effective deterrent. The best deterrent is that people are actually caught and convicted.

I also wonder what the judges would think if one day POMAC and the President revived the hanging process and some or all of the people sentenced to death in this rather bizarre charade were actually executed.

Another odd facet is that we have here a situation when disobedience of a court order on the part of government is built-in, almost invited.

Dubious constitutionality of life imprisonment

Recent court decisions have introduced another dimension. As some media have pointed out, and as Joshua Nyawa wrote a few weeks ago in Katiba Corner, the Court of Appeal has recently held that life imprisonment is unconstitutional.

But the Supreme Court has held the death penalty is not unconstitutional (though a compulsory death penalty is). The Court of Appeal was dealing with defilement cases, but the logic of the two benches of the Court of Appeal applies equally to any other life sentence. So the imposition of the death sentence puts the President and POMAC at risk of imposing a constitutionally doubtful penalty.

POMAC does not have to advise life, however; they could advise a fixed penalty – and comply with the Court of Appeal decision on life imprisonment.

Of course, by the next presidential commuting exercise (2029?) the whole issue may have been to the Supreme Court and, hopefully, rationalised. Or maybe the death penalty will have been done away with by statute.

This article was first published by the Star Newspaper https://www.the-star.co.ke/siasa/2024-03-24-ghai-what-are-kenyan-judges-doing-when-they-sentence-someone-to-death/

Image: DOUGLAS OKIDDY