It is encouraging to see that death sentences – and life sentences also – may be discussed in Parliament.
A draft Bill is being (or has been) presented to Parliament, coming from the National Committee on Criminal Justice Reforms. Actually to be a Bill formally before Parliament it will have to be presented by a private member, a committee chair or, if adopted by government, by the leader of the Majority Party.
This article will concentrate mainly on what it says about life and death sentences.
The draft Bill represents some improvement but is problematic in various ways.
No mandatory death sentence
Readers may remember that the Supreme Court (in the Muruatetu case) declared the Penal Code provision saying courts had no choice but to give the death sentence for murder unconstitutional. Their reasons included that a sentencing process in which the court had no power to take into account the degree of fault of the offender was not a fair trial. It also violated the Constitution because it made an appeal against the sentence meaningless.
The court added (in a separate, supposedly clarifying, judgment known as Muruatetu II) that this ruling applied only to murder, not other offences (which included treason and robbery with violence). This was itself illogical (how could the reasons not be equally applicable to robbery with violence?). In fact, some courts have applied the Supreme Court’s Muruatetu I reasoning more widely, while others have said they are unable to do so because of Muruatetu II. Confusion has reigned.
The new draft Bill would make deciding on imposing a death sentence always a matter for the court. There is no mandatory or minimum sentence here. And it would divide murder into two “degrees”. A list of factors (like being a terrorist act, while committing a sexual offences, or killing by poison) make it first-degree murder. For these the death penalty is available to the court. All others are second degree and the maximum is life (as redefined - see below).
Analysing fully the language used would be tedious in the extreme – but I believe that distinguishing between first- and second-degree murder, and between second-degree murder and manslaughter would be extremely difficult in some cases.
It is not clear whether it is murder only if the killer intended to kill - especially because the Bill would remove the old (too wide) definition of what intention made a killer guilty of murder.
And how do you differentiate between murder and manslaughter if both include “causing death by unlawful omission”? The definition of this is copied from the Penal Code’s section on manslaughter (which is not removed) into the Bill’s clause on second-degree murder.
Disappointingly, and a bit surprisingly, the Bill also provides for the death penalty for some robbery. Again it is divided into two offences – first and second degree. Bizarrely, it retains the idea that robbery committed with anyone else makes the offence so serious that death is a possible penalty. But why is death a possibility at all for this offence if no one has died? No eye for an eye here – if that is your principle. And if someone has died it should be treated as murder or manslaughter.
One oddity about the drafting is that, though the death sentence is not mandatory, it is not clear what the alternative is. One would have expected perhaps the alternative sentence of a maximum of life imprisonment to be available to the court. Otherwise, could courts impose a fixed prison term greater than the new “life” – say 40 years?
Perhaps understandably, the Committee felt unable to propose abolishing the death penalty altogether (there is another Bill before Parliament on this). But look where it leaves us.
The reality
Courts could still impose the death penalty. The other day in a murder trial, the prosecution and the lawyer for the victims asked the court to apply the death penalty. And, as I recall, the court did.
What sort of macabre performance is being enacted here? What do these lawyers and judges think they are doing when a death sentence is imposed? Surely not that the convicted person will actually be hanged? They must know that no-one has been executed officially by the state in Kenya since 1987, though many have been sentenced to death.
Do they use this as a form of condemnation of the offence, though knowing that the person will never be actually executed? The convict may be less certain. So the effect is to make that person feel that he or she will be killed, or at least be in a state of uncertainty and apprehension. While on death row that person cannot work, I believe. Eventually the agony will almost certainly be ended by the President commuting the sentence probably to life – on the recommendation of the Committee on the Power of Mercy. So the sentence is not actually death – but a period of agonising uncertainty – a sort of con trick on the convict.
Also on the victims – maybe they believe the person will actually die.
Suppose the President suddenly decided to sign the necessary warrant for someone to be executed. How would that cast of actors, the lawyers and the judge, feel? Not that it would be easy. Hanging is the only legal method and we have not had a hangman for nearly 40 years, and this requires skill and a willingness to do the job.
And what an appalling travesty of justice and equality we would have if presidents suddenly decided to pick and choose some of the convicted to actually be hanged!
Life
Recently the Court of Appeal declared the life sentence unconstitutional. In Kenya, it has been really life. There is no provision for remission (that is early release) for good behaviour – because that happens after a certain percentage of the offence has been served, but “life” is uncertain.
The Court of Appeal said an indeterminate life sentence was “inhumane treatment and violates the right to dignity”.
The Bill changes “life” to 30 years. It does so in a sloppy way. First it defines life (in the Penal Code section that is a dictionary for the Code) to mean 30 years. Then it changes some specific provisions, sometimes to say “life” and sometimes to say “30 years”. Each should be changed individually.
Various other countries have found life sentences, particularly whole life sentences, problematic. The Canadian Supreme Court held that those sentenced to life must have the possibility of being considered for parole after 25 years. The European Court of Human Rights has reached a similar conclusion.
It is wrong to deal with the Penal Code only. Much criminal law is found elsewhere and sentences in newer acts are often much harsher.
Several statutes provide for life sentences, like the Sexual Offences Act. Or even the death sentence, the Kenya Defence Forces Act. An amendment to the Penal Code cannot affect these. And some statutes have maximum terms of imprisonment more than 30 years: the Narcotic Drugs and Psychotropic Substances (Control) Act provides for imprisonment for a term of 50 years for someone in possession of a certain quantity of drugs.
I have seen no report or policy document from the committee. Too often laws are drafted without the issues being fully discussed. We should know the reasoning of the committee, including why 30 years.
It is a bit disappointing that after several years this committee does not seem to have come up with much more, on the Penal Code, than endorsing decisions already made by courts or a suggestion of the DPP, about removing petty crimes that lead to the prisons being clogged with petty criminals. Also a few other much-discussed topics like not penalising living on the proceeds of prostitution, or attempting to commit suicide.
Much more needs to be done to the Penal Code – for example, raising the age at which a child can be convicted of a crime from eight years.
