Death Row convicts now have a second chance after the Supreme Court yesterday ruled that the mandatory death sentence is unconstitutional.
This is after two convicts — Francis Muruatetu and Wilson Mwangi — moved to the apex court to challenge the legality of capital punishment, saying it was unconstitutional.
On March 12, 2003, the two were convicted of murder by Judge Msagha Mbogoli in violation of Section 203 of the Penal Code and were sentenced to death as mandated by Section 204 of the Penal Code.
They appealed the decision in the Court of Appeal, but their plea was dismissed.
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Their death sentence was reduced to life imprisonment by former President Mwai Kibaki on August 3, 2009.
DCJ Philomena Mwilu, Justices Njoki Ndung’u and Jackton Ojwang’ ruled that any court dealing with a capital offence should be allowed to use its judicial discretion to deliver judgment.
“We are of the view that the mandatory nature of this death penalty runs counter to the constitutional guarantees enshrined for the rule of law,” Mwilu said.
They said Section 204 of the Penal Code was unconstitutional and any legal procedure should be just, fair and reasonable.
“It is evident that the trial process does not stop at convicting the accused person. There is no doubt in our minds that sentencing is a crucial component of trial,” the court said.
The judges said the principle of fair trial must be accorded at the sentence stage when hearing submissions.
“It becomes clear that Section 204 is out of sync and cannot stand and it’s inconsistent with the Constitution” Ndung’u said.
The court held, however, that their order does not interfere with the validity of the death sentence as contemplated under Section 26-3 of the Constitution.
It sent the petitioners’ case back to the High Court for rehearing on a priority basis and in conformity with the judgment.
“We find both petitioners deserving of remedy, as they were denied a fair trial — a right under the previous Constitution and which they are still entitled to,” Mwilu said.
The judges directed the AG, the DPP and other relevant agencies to prepare a detailed professional review of all cases similar to the one that was before them.
This means all other Death Row convicts will have their cases reheard.
The court also ordered that the judgment be placed before the Speaker of the National Assembly for any necessary amendments.
“We are of the view that such proposed legislation will enable us to comply with Article 26 of the Constitution, which states that any treaty or convention ratified by Kenya shall form part of the law of Kenya,” Mwilu said.
Section 204 of the Penal Code states that any person found guilty of murder or robbery with violence, among other capital offences, shall be sentenced to death by hanging.
Lawyers Kioko Kilukumi and Fred Ngatia for the petitioners had said the mandatory nature of the death penalty under Section 204 jettisons the discretion of the trial, prompting a predetermined sentence, hence fouling separation of powers.
They said the sentencing process is part of the right to a fair trial enshrined in Article 50 of the Constitution.
The DPP told the court that as per the Constitution, the right to life is not absolute. He agreed, however, that sentencing is a judicial function and as such under the doctrine of separation of powers the legislature should not encroach on a territory that constitutionally belongs to the Judiciary.
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