Is death penalty mandatory? Should death penalty be abolished? Is it inhuman to send somebody to the gallows? These are some of the questions the Supreme Court will be mulling mid this month.
In a decision that would set precedent in the country, a death row convict has moved to the country’s highest court, seeking to challenge a section in the Penal Code which provides for one sentence - death - in offences such as murder, robbery with violence and treason.
Section 204 of the Penal Code was successfully challenged by a death row convict in 2008. A three-judge bench of the Court of Appeal, then the highest court in the land, ruled in 2010 that to the extent that death penalty is the only sentence in respect of the crime of murder, it is inconsistent with the letter and spirit of the constitution.
The judges ruled that Section 204 of the Penal Code is antithetical to the constitutional provision on protection against inhuman or degrading punishment or treatment and fair trial.
“We note that while the constitution itself recognises the death penalty as being lawful, it does not say anywhere that when a conviction for murder is recorded, only the death sentence shall be imposed.
“We declare that Section 204 shall, to the extent that it provides that the death penalty is the only sentence in respect of the crime of murder is inconsistent with the letter and spirit of the constitution, which as we have said, makes no such mandatory provision,” the judges ruled.
But one year later, Justice Mohammed Warsame, then a judge of the High Court (he is now a judge of the Court of Appeal), described the ruling of the Court of Appeal as a "significant step in the wrong direction". While sentencing Dickson Mwangi Munene and Alex Chepkonga to death in 2011, Justice Warsame said Section 204 only provides one sentence.
Mwangi says section 296 (2) and section 297 (2) of the Penal Code, which provides the sentence for murder, treason, robbery with violence, is against Article 163 and 50 of the constitution.
The judge ruled that anyone responsible for cruel death of another must pay in a measure commensurate to the suffering of the victim or his family.
Since then, there has been confusion with judges not sure which sentence to prefer to murder convicts. Some judges have gone ahead and sentenced offenders to death, others to life in prison, whereas some convicts have been lucky to be sent to several years in jail.
And writing in one of the local dailies over the confusion, criminal lawyer Pravin Bowry said “it behoves the President, the Chief Justice, the Commissioner of Prisons, the AG, the DPP and the Supreme Court to put to rest once and for all and tell Kenyans whether the sentence of death in the statute book is lawful, and if so, why is it not carried out?”
The lawyer wondered who will take the initiative, adding that the impact of International Treaties to which Kenya subscribes is also likely to manifest when discussing death sentence.
And now, death row convict Wilson Thirimbu Mwangi has taken the fight to the seven judges of the Supreme Court. Mwangi, who together with several other people were sentenced to death for the murder of businessman Lawrence Magondu 13 years ago, wants the Supreme Court to determine the legality of the sentence.
He says the country’s highest court should show the way so that courts may proceed in murder cases on a “sound footing as regards the correct sentence to mete out”.
His lawyer Timothy Bryant told the Star that he was concerned with the confusion and wanted the Supreme Court to settle it. This is despite the fact that a bench of five judges of the Court of Appeal is set to hear a similar issue.
Bryant is the same lawyer who successfully argued the Mutiso case and is worried that some judges have ignored the precedent set by the Court of Appeal. He says he has armed himself with several foreign authorities and international cases from countries such as Malawi, India, and the USA to convince the judges of the Supreme Court.
After hearing the case last month, three judges of the Court of Appeal admitted that the Supreme Court now has the chance to determine the legality of the death sentence under section 204 of the Penal Code, “so that all the courts in the land to know and therefore proceed in the murder cases on a sound footing as regards the correct sentence to mete out”.
“Its (Supreme Court) decision will spell out the law, lay on the table the jurisprudence for all of us to follow and apply,” said Justices John Mwera, Philomena Mwilu and Kairu Gatembu. The judges said with such an environment of uncertainty and confusion, the matter should be settled once and for all.
The three judges said the Supreme Court should determine whether the death sentence violates the constitutional rights under the Bill of Rights, the legality of death sentence under section 204 of the Penal Code for the due interest of justice.
The judges added, “It is of concern to all these categories (conviction, prosecutors, victims or their relatives, scholars and the wider public) that the status and applicability of the death sentence is made clear, certain and final, if not all the time, for the time being”.
They added that they say thus because there have been many cases before the Court of Appeal, the High court and the subordinate courts, where challenges have been raised about the death penalty. “Some views have been to the effect that that sentence is unconstitutional, others are that it is not mandatory, there have been cases of conflicting decisions too,” the judges said.
Four years ago, President Mwai Kibaki, through the Constitutional Advisory Committee on Prerogative of Mercy, commuted the sentences of about 4,000 death row convicts to life sentence. The President also directed relevant government organs to urgently review its relevance to the country’s laws.
Kenya has not hanged anyone since 1987 when Hezekiah Ochuka and Pancras Oteyo Okumu, both accused of plotting the August 1, 1982 coup were sent to the gallows.
Many have called for the repealing of the law, saying the prisoners on death row cannot be put on gainful use. The death row convicts are under 24-hour watch and are not allowed to get out of their cells even for labour, as per the prisons rules. Some violence in prison facilities such as Kamiti Maximum and Naivasha prison has been blamed on idleness.