Kenya’s mandatory death penalty ruled unconstitutional
In a landmark judgment, the Court of Appeal of Kenya on July 30 declared unconstitutional the application of a mandatory death sentence on all prisoners convicted of murder. However, the new constitution adopted by Kenyan voters on August 4 failed to abolish the death penalty.
In their unanimous judgment, the Court of Appeal ruled that the automatic nature of the death penalty in Kenya for murder violates the right to life and amounts to inhuman punishment, as it does not provide the individuals concerned with an opportunity to mitigate their death sentences.
As a result, hundreds of prisoners currently on death row in Kenya, including the appellant, Godfrey Mutiso, will fall to be re-sentenced in accordance with the new law.
The Court of Appeal said that the same reasoning would apply to other offences having a mandatory death sentence, such as treason and robbery with violence. A new set of procedures will now have to be adopted to ensure that sentence hearings take place and a judge has the discretion to consider what sentence to impose after hearing evidence in mitigation.
The death penalty is now to be the maximum sentence, but not the only sentence.
The Court of Appeal also stated that holding a person on death row for more than three years would be unconstitutional.
Two Kenyan lawyers represented Mr Mutiso on a pro bono basis in the Court of Appeal, with assistance from the Kenyan legal organisation CLEAR Trust and from UK lawyers. Saul Lehrfreund and Parvais Jabbar, human rights lawyers and executive directors of the British-based legal aid organisation Death Penalty Project said in a statement: “We are delighted that the jurisprudence from Uganda, Malawi and other regions in the world has now been accepted in Kenya. It also reflects an emerging trend seeking to restrict the application and scope of the death penalty. We hope this decision will be adopted in other countries in East and West Africa where the mandatory death penalty is still in operation.”
The following week, the Kenyan people voted in favour of a new constitution. Abolitionists had hoped that the constitutional draft would abolish the death penalty, following the commutation of 4,000 death sentences by President Mwai Kibaki last year. But the final text failed to outlaw capital punishment, stating instead: “A person shall not be deprived of life intentionally, except to the extent authorised by this Constitution or other written law.”