NAIROBI, Kenya, Oct 1- The Supreme Court’s clarification that the mandatory death sentence has been lifted for convicts of murder only has revived the discourse around the legality of some provisions of the criminal procedure code (CPC).
And the discourse appears to suggest a need for legal review or overhaul of some sections of the CPC to realign penalties and demystify the death penalty and life imprisonment to meet the expectations of the sentencing policy. There are also voices suggesting the abolition of the two penalties.
Before the apex court’s clarification, in July, the death sentence appeared to have been completely subdued by death row convict Francis Karioko Muruatetu and his counterpart Wilson Thirimbu in the infamous Supreme Court decision of 2017 that declared mandatory death sentence for murder convicts unconstitutional.
It had been presumed within the legal fraternity that the decision applied for all capital offences and other offences with minimum and mandatory sentences.
But the court at the apex of Kenya’s judiciary explained that the decision applies only for convicts charged with murder contrary to section 203 as read with Section 204 of the penal code.
“This direction automatically divests this court’s jurisdiction to resentence the petitioner herein,” Justice Eric Ogola of Mombasa law courts said on August 3.
He was ruling on a petition by a robbery convict serving a life sentence after his death sentence was commuted.
The man who attacked and robbed Italian tourists in 1995 will continue to serve a death sentence imposed on him 24 years ago.
Kennedy Kavai Abdalla, who has spent 26 years behind bars, had petitioned the High Court for resentencing, basing his arguments on a 2017 Supreme Court ruling on mandatory death sentences.
This means other offences where death sentence is provided for as the only penalty still exists and this is the cause for controversy.
For instance, Section 297 (2) of the CPC provides the death penalty for attempted robbery with violence and a similar penalty for robbery with violence.
On the other hand, Section 389 of the same CPC provides a seven-year sentence for “an attempt to commit a felony”.
According to the law, attempted robbery with violence amounted to a felony and so it should be considered as an offence in the eyes of Section 389 which should be punished with seven years’ imprisonment.
This, therefore, means the CPC provides different legal regimes to punish similar offences hence the need for an overhaul of the CPC to bring uniformity.
Legal experts have pointed out an inconsistency between the penal code and the constitution, which creates an environment of confusion in the criminal justice system.
For example, a terrorist sympathizer who aids the commission of an attack may get a lesser penalty than a robbery convict who robs a shop for food while starving.
The penal code prescribes death sentence as the only punishment upon conviction for a number of certain offences classified among capital offences.
And the constitution explicitly states that the right to life is a fundamental right that can’t be taken away for any reason.
It says, in Article 26 (1), that every person has the right to life. That right to life is entitled to everyone, including convicts of capital offences, which attract the death penalty.
Trial magistrates and judges, though bound and guided by the constitution, have no option other than to sentence convicts to death, although the sentence is unconstitutional.
Lawyer John Macharia said the death sentence is unconstitutional as it negates the right to life, which cannot be denied. Macharia said it is unconstitutional for courts to continue hanging convicts because the right to life is guaranteed and can’t be taken away for any reason.
“Every person has the right to life and a person shall not be deprived of life intentionally, except to the extent authorised by the constitution or other written laws,” Macharia said.
“The constitution is the supreme law and any law that contravenes it is null and void.”
He said judges and magistrates should be cognisant of the inconsistency of the penal code, which he said provides for the death sentence, while the supreme law protects the right to life.
“Life is sacred and the right to life is protected by the constitution. The question is, does the government have the authority to take away someone’s life?” Macharia asked. He said this has significantly contributed to congestion of prisons.
Speaking to Shahidi News, prominent criminal lawyer Cliff Ombeta said the death penalty is unreasonable and has not served the purposes it was intended for.
He said some death row convicts and those on life imprisonment reform after their stay in prisons. The lawyer said stakeholders should agree on the length capital offenders should stay in jails before being released, depending on their conduct after conviction.
“The death sentence and life imprisonment were thought to be able to decimate the capital crimes of murder and robbery with violence. But murder cases are on the rise. The punishments are not useful and should be abolished,” Ombeta said.
“But they have to stay with the hangman’s noose hovering above them like the Sword of Damocles for the rest of their lives,” he said.
They both want the death sentence and life imprisonment to be defined with a definite length of time, say 25-40 years imprisonment.
Celebrated lady justice Jessie Lesiit of the court of appeal in a past interview with this writer said the death sentence is not cruel and should not be abolished.
She said there are offenders that are deserving of the death sentence but not all convicts of capital offences should get capital punishment.
“The problem with sections of our laws that prescribe death sentences is one suit that fits everyone or one river that carries everyone equally. The law does not give a discretion for a judicial officer (judge or magistrate) to look at circumstances under which an offender committed the offence and use that discretion when sentencing the convicts,” she said.
“The law lacks clear definitions and distinctions between offenders and the role they play in commission of the capital offices. Where two or more people are charged with a capital offence, the law should identify the principal perpetrator and a nominal perpetrator of the offences and provide punishment to each offender depending on the roles they played in the execution of the offence.”
She said the definitions and distinctions among convicts will help judicial officers in passing death sentences to the offenders that are deserving of being hanged instead of any offender who has been convicted of a capital offence.
And death row convicts argue that delays in carrying out death sentences – killing them – and the inconsistencies in passing the death sentences amounted to cruel and degrading treatment
Should the two punishments be abolished and replaced with alternative punishments that are lesser but equally deterrent? Should what constitutes capital crimes be redefined to include the corruption offences plaguing the country?
While lawyers say the right to life is inalienable, some members of the public say capital punishment should be retained for serial killers, terrorists, and some sexual offenders.
The public’s views, collected between June and November 2016 by the Power of Mercy Advisory Committee (Pomac), were to inform a policy on restructuring the country’s correctional system before the Muruatetu ruling.
There are about 4,000 inmates on death sentence and life imprisonment in various maximum correctional facilities. Hundreds of others have been released or their sentences specified and reduced after applying for revision of sentences following the Muruatetu petition.
After the clarification by Supreme Court on Muruatetu decision in July, the only capital offence not punishable with a mandatory death sentence is murder the rest including robbery with violence, some military offences, treason, and oathing for crime by proscribed groups, including terrorist groups, are classified as capital offences. They are punishable by death or life imprisonment upon conviction.
Some sexual and drug trafficking offences attract the two forms of capital punishment, although they are not listed as capital offences in the penal code. During debates, some people said corruption offences should be classified among capital crimes that should attract capital punishment.
Criminal, constitutional, and human rights lawyers agree that the criminal justice system should drop the two forms of capital punishment and seek alternative correctional measures. They say the death sentence violates the constitution and both punishments have not reduced capital offences.
Ombeta said the two sentences are irrational and inconsiderate of the age of the convicts and other factors that should be considered during the sentencing.
“When two people, one 20 years old and the other 75, are handed the life sentence or death penalty, probably one will live in jail for 50 or 60 years, while the other could even die after one year,” Ombeta said.
Psychiatrist Frank Njenga supported calls for capital punishment to be abolished. He said experts should be involved to assess the level of reform achieved by a convict in consultation with prison officials.
The experts would help re-integrate the convicts with the community to ensure they don’t meet hostility after their release from prison.
Njenga said the recommendations of prisons should be considered in determining whether a capital offender is reformed enough to be set free.
“There is no guarantee on whether the offender can’t repeat the offence, but for instance, if the circumstances under which the offender committed the offence are no longer there, there is no likelihood of repeating the crime once released,” he said in a past interview with Shahidi News.
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