You either execute or stop subjecting one to mental torture. Imagine being a death row convict; you don’t know your fate, anytime you are called you think 'this is the day I'm being hanged
The death penalty is punishment handed down by a court to a person convicted of a capital offence.
Kenya's penal code prescribes the death sentence as mandatory for anyone found guilty of murder, robbery with violence and treason.
The death penalty is still legal in Kenya and most courts still sentence convicts to death if found guilty of a capital offence.
The Supreme Court did not abolish the death sentence in the Muruatetu case. It only gave magistrates and judges discretion to decide on the sentence.
The ruling gave them power to determine each case by its own merit unlike before where the penal code stated that if an accused was found guilty they shall be sentenced to death by hanging.
Even though still part of our law, no one has been executed for more than three decades.
Former President Daniel arap Moi was the last head of state to sign an execution order. In 1987 he signed one against Sergeant Joseph Ogidi and six other Air Force officers for their role in the 1982 failed coup.
In 1985 he signed an execution order for Hezekiah Ochuka who was said to be the mastermind of the coup.
All the death row convicts were executed by hanging at the Kamiti Maximum Prison.
Former President Mwai Kibaki and the current President, Uhuru Kenyatta, have never signed an execution order.
They have however commuted the death sentence of some inmates to life sentence, meaning the convicts will not be executed but will spend the rest of their lives behind bars.
A death row convict is a person who has been sentenced to death and is in jail awaiting execution. If the president signs their execution order, then they will be hanged as per the law.
The most recent death row convict is Ruth Kamade (Miss Lang'ata Prison) who was sentenced to death in 2018 by Justice Jessie Lessit. The prison beauty queen was found guilty of murder after stabbing her boyfriend 22 times.
Appellate judges upheld the sentence last year, meaning she is still on death row.
But then again let someone suffer his punishment without death. This issue of an eye for eye is outdated
A number of lawyers and human rights activists are advocating the abolition of the death sentence.
Constitutional lawyer Lempaa Suyianka says it’s because two wrongs don’t make a right, adding that killing someone convicted of murder does not correct the offence in question.
“One suffers more in life than in death. If you kill someone that’s the end of it, but if you sentence them to 25 years in dingy dirty congested bedbug-infested jail cell that persons suffer more than in death,” Lempaa says.
He says the mental torture death row convicts suffer as they wait for years not knowing if they will be hanged or not is wrong and that’s why the death penalty should be abolished.
“You either execute or stop subjecting one to mental torture. Imagine being a death row convict; you don’t know your fate, anytime you are called you think 'this is the day I'm being hanged',” he says.
Criminal lawyer Cliff Ombeta also says he is against the death sentence because it is crude and harsh.
He points out that if someone is hanged for murder and 10 years later new DNA evidence shows he did not commit the offence, then there will be no justice for them.
“But then again let someone suffer his punishment without death. This issue of an eye for eye is outdated,” Ombeta says.
On the victims who advocate the death sentence, Ombeta says most of them are just after revenge.
“Victims cannot be objective; they want blood. If you give them a chance to express sentiments they will never think of anything else apart from revenge,” he says.
Lawyer Shadrack Wambui says the Muruatetu case gave a lease of life to judicial independence among the magistrates and judges.
“There is a principle that has been set in that case of judicial independence so that at the time of sentencing a judge or magistrate looks at the circumstances that led to offence that’s in question,” he says.
Wambui says, however, though the President is yet to sign any execution order, any Kenyan can move to court seeking a mandamus order to compel him to sign for an execution of a death row inmate.
