Article 26 of the Constitution is the starting point for any analysis of whether the death penalty is constitutional in Kenya. It guarantees every person the right to life, but with an important caveat: the right to life can be intentionally limited through written law.
Unfortunately, many people, including jurists, have misread Article 26, presuming that the penalty must be constitutional because it is a written law that authorises the state to take a person’s life. That is not the case.
While Article 26 recognises some circumstances where the right to life can be limited, it never authorises the death penalty as such. The death penalty is never mentioned in the Constitution; it is neither expressly authorised nor expressly forbidden. When deciding on the death penalty’s constitutionality, Article 26 does not provide the answer. It is only the starting point.
Written law and causing death
It is worth considering laws that allow for the intentional taking of a life. Intuitively, we automatically think of the death penalty when we hear about an intentional limitation to the right to life. But the death penalty is just one of several laws that authorise the intentional taking of a life.
The Penal Code authorises taking the life of another in self-defence. The National Police Service Act provides several situations in which a police officer is justified to use firearms, and potentially, take the life of another. The Geneva Conventions Act, which adopts international standards to limit the brutality of war, restricts the lawful taking of life during war.
Many countries, including Canada and New Zealand, have laws authorising physician-assisted suicide – the intentional taking of the life of a terminally ill person who is mentally capable of deciding on their treatment. And Kenya’s Parliament is considering legislation on fertility treatments to address the tricky question of when and how a fertilised, unused embryo can be disposed of.
In short, there are many circumstances in which a life can be intentionally taken, and Article 26 is written to address all of them. It has to address all the circumstances in which intentionally taking a life might be justified. Although the death penalty is one of those circumstances, it is only one. Article 26 does not authorise the death penalty. Instead, it recognises there are circumstances when intentionally taking a life may be appropriate and requires any law on the issue be in writing.
Article 24
But meeting the two requirements of Article 26 – identifying the circumstances when a life may be intentionally taken and memorialising it in writing – is not the end of the story. Article 26 does not protect every law that does this. Imagine a written law that said people from a particular religion, ethnicity or region could be killed without criminal penalty. That law would satisfy the technical requirements of Article 26, but would undoubtedly be unconstitutional.
A second, substantive analysis must be made under Article 24, which gives us the framework for establishing whether any law that limits a right or fundamental freedom, such as the right to life, is constitutional. According to Article 24, a limitation on a right or fundamental freedom is invalid unless made through law and only to the extent that the limitation is “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom".
When determining whether a law is “reasonable and justifiable”, Article 24 lists several factors to consider, including, the nature of the right or fundamental freedom; the nature and extent of the limitation; the need to ensure the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and the relation between the limitation and its purpose and whether there are less restrictive means to achieve that purpose. If a limitation of a right does not meet the “reasonable and justifiable” standard, it is unconstitutional and void.
Last December, in the Katiba Institute Camp, in another versus the Attorney General Camp and in yet another, the High Court applied the Article 24 analysis to a police officer’s right to use firearms and, in turn, take or risk taking the life of another.
The circumstances in which the use of a firearm is appropriate are outlined in Section 1 of the Sixth Schedule to the National Police Service Act. Section 1(b) authorises the police to use firearms for self-defence or in defence of another when faced with an “imminent threat of life or serious injury”. Authorising a police officer to limit the right to life of an assailant under these narrow circumstances makes sense and, intuitively, seems reasonable and justifiable under Article 24.
If one were to apply the Article 24 factors, one would analyse the nature of the right to life, recognising that it is the most important right anyone has because it is the underpinning of all other rights guaranteed in the Constitution. Section 1(b) is extremely narrow: it only applies to a police officer and only when that officer or another person is facing a life-threatening situation. That situation must be “imminent” – that is, likely to occur at any moment.
Section 1(b) does not apply when the threat is speculative, distant, or avoidable. And it appropriately balances the limitation with a law enforcement officer’s duty to protect the public from harm.
Section 1(c) of the Sixth Schedule provides another circumstance when a police officer may use deadly force: to protect property. Section 1(c) was one of the sections challenged in Katiba Institute v Attorney General. The court held that Section 1(c) did not pass Article 24’s test and was unconstitutional.
Unlike Section 1(b), Section 1(c) is quite broad; ‘property’ could include anything from a biro to a home, yet Section 1(c) authorises taking another’s life – the most important of all rights a person has – for the protection of either. Although the Constitution also guarantees the right to property, the court recognised that when the right to life is balanced against the right to property, the right to life – even that of a thief – takes precedence.
Moreover, the court noted that there are other, less restrictive means of protecting the right to property, including apprehension and arrest. According to the court, allowing a police officer to take a person’s life to protect property is not “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom”. Unlike Section 1(b), Section 1(c) was held to be void and unenforceable.
The laws authorising the death penalty must be put through the same analysis as those that authorise the use of deadly force by the police. We must decide whether the death penalty, as prescribed under the Penal Code, satisfies the test set out in Article 24.
We cannot simply assume that the death penalty is justified because Article 26 allows for the intentional taking of life under some circumstances. Instead, we must ask whether allowing State-sponsored executions is “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom”.
That inquiry is overdue, and we have avoided it for too long. One way or another, Kenya must take a stand on this most fundamental question. For those like me, who have worked for years to abolish the death penalty, the death penalty is not reasonable and justifiable.
I believe if we discuss the death penalty based on the precept set out in Article 24, the abolitionists will carry the day. But either way, we cannot use Article 26 as an excuse for inaction. The Constitution does not answer the question for us. Instead, it demands we use Article 24 to answer the question for ourselves.
Litigation manager at Katiba Institute
