On July 6, the Supreme Court issued a clarification on the Muruatetu ruling. This is the decision of the Supreme Court in 2017 on whether the mandatory death penalty for murder is unconstitutional.
The clarification — which the Court referred to as “Directions of the Court” — is symbolically important for several reasons. First, it is the first judicial matter that Chief Justice Martha Koome presided over since taking office. It was also the first judicial matter the new member of the Court, Justice William Ouko, has participated in. Second, the clarification was made by the entire seven-judge bench of the Supreme Court without dissent.
But it is the contents of the clarification that are important and highly problematic. First, let me explain a bit more about Muruatetu.
BACKGROUND
Francis Karioko Muruatetu and Wilson Thirimbu were convicted of murder and sentenced to death. Under Section 204 of the Penal Code, a person convicted of murder must be sentenced to death. A judge has no power to impose any other sentence, regardless of the circumstances or how the murder was committed. This is unlike what happens with most other offences, where judges or magistrates are left to decide what is the appropriate sentence based on all the circumstances. The court has a “sentencing discretion”.
In 2014, Muruatetu and Thirimbu’s appeal reached the Supreme Court. They argued it was unconstitutional for the Penal Code to dictate that the only sentence a judge can impose for those who are convicted of murder is death.
Two of their arguments are worth highlighting.
First, that sentencing is part of trial — which Article 50 of the Constitution guarantees will be a fair trial. Moreover, Article 25 states that the right to fair trial cannot be limited by law or state action. The appellants argued that taking away judges’ power to decide the sentence of a person convicted of murder was taking away part of the fair trial process.
The second argument was in relation to the principle of separation of powers. Under this principle, it is the primary role of the Judiciary to resolve disputes, including of criminal nature and a core part of that role is fixing sentences. It is not the job of Parliament. The argument concluded that any statute that took away the discretion of the Judiciary to determine the appropriate sentence offended the principle of separation of powers and hence unconstitutional.
The Supreme Court agreed with all these arguments and found that Section 204 of the Penal Code was unconstitutional. Specifically, on the argument of fair trial and separation of power the Court stated that:
[48] Section 204 of the Penal Code deprives the Court of the use of judicial discretion in a matter of life and death. Such law can only be regarded as harsh, unjust and unfair. The mandatory nature deprives the Courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in appropriate cases. Where a court listens to mitigating circumstances but has, nonetheless, to impose a set sentence, the sentence imposed fails to conform to the tenets of fair trial that accrue to accused persons under Articles 25 of the Constitution; an absolute right.
ENSUING CONTROVERSY
Those who closely watched the interviews for the position of Chief Justice would not have failed to notice that nearly every candidate was asked about the “controversy” of the Muruatetu decision.
And this is the controversy.
After Muruatetu, many people convicted of murder and sentenced to death applied for the review of their sentence. The Supreme Court had said this should be organised for “cases similar to that of the petitioners” – namely Muruatetu and Thimbu.
Those convicted of robbery with violence also sought a sentences review. This is the other regular offence that has a mandatory death sentence (the much less common crimes of treason and certain offences under the Kenya Defence Forces Act are others).
But there was a category of people who sought to also take advantage of Muruatetu who were not convicted of murder or robbery with violence – namely people convicted of a crime that had mandatory minimum sentence, but not a mandatory fixed sentence.
It is important to clarify the difference. If one is convicted of an offence that has mandatory minimum sentence, the judge or magistrate cannot impose a sentence below the minimum provided for in law. But if there is a mandatory fixed sentence, there is only one sentence that a judge/magistrate can impose. Many offences, especially under the Sexual Offences Act, have mandatory minimum sentences. The only fixed maximum sentences are the death sentences fixed by the Penal Code or the Kenya Defence Forces Act.
It was the number of cases of people seeking alteration of their Sexual Offences Act sentences that seems to have triggered the “controversy”.
CLARIFICATION BY SUPREME COURT
I want to focus on only two of the Court’s clarifications — the non-applicability of Muruatetu jurisprudence in convictions of robbery with violence and on offences with mandatory minimum sentences.
On the second, the Court is partially right to say that Muruatetu is not applicable where the law provides a mandatory minimum sentence. The discretion of a magistrate or judge on the sentence to be imposed is not fully extinguished in such cases. There is, however, a debate whether mandatory minimum sentences are actually unconstitutional, as some courts have decided, and whether some of the Muruatetu reasoning would logically lead to that result. But this discussion is for another day.
ROBBERY WITH VIOLENCE
Most disturbing is what the court said about Muruatetu not applying to cases of robbery with violence. The court essentially says the Muruatetu decision is misunderstood since the court intended it to only apply in cases of murder.
But a conviction for robbery with violence, like murder, attracts only a sentence of death. This means the legal reasons that the Supreme Court found the mandatory death penalty for murder fully and logically apply to robbery with violence sentencing. Arguably more so.
The court said in its main Muruatetu judgment, “If a judge does not have discretion to take into account mitigating circumstances … [this] may make the sentence wholly disproportionate to the accused's criminal culpability.”
Robbery with violence may be committed with no violence and very little loss – and usually no death.
The Court of Appeal and High Court have already decided in several cases that mandatory death sentence for robbery with violence is unconstitutional based squarely on the correct legal logic of Muruatetu.
Judges in those courts are required to use Supreme Court decisions when dealing with comparable cases. The Supreme Court was no doubt reluctant to seem to decide robbery with violence cases before they reach the court. The right thing for the Supreme Court to do was either to limit itself to saying its earlier judgment excluded specifically the mandatory minimum sentence cases or — better — to wait for the cases on mandatory minimum or mandatory fixed sentences to get to the Supreme Court.
Instead, its statement that the Muruatetu principles do not (yet) apply in robbery with violence cases does inestimable injustice. Most of those sentenced to death are robbery with violence convicts, not murderers. If anything they are worse off than convicted murderers.
The Magistracy, High and Court of Appeal were already finding ways to lessen their injustice using Muruatetu in the new sentencing regime. The impact of the Supreme Court clarification is effectively that all those people must wait until the Supreme Court gets and decides a case on robbery with violence. When that happens, it is inconceivable that the Court will not use the principles articulated in Muruatetu. The outcome is absolutely predictable.
There are more disturbing errors in the clarification. Suffice it to say, this is the wrong way for Chief Justice Koome and Justice Ouko to start their jurisprudential journey at the Supreme Court at a time we are so desperate for that court to become more reflective and clear in how it approaches judging.
The author is a constitutional lawyer
