Death penalty in Kenya: Any hope for abolishment?

Thursday, October 28th, 2021 00:00 | By
Constitution of Kenya. Photo/Courtesy

Sylvia Morwabe 

The July 1987 execution of Senior Private Hezekiah Ochuka and Pancras Oteyo Okumu for treason effectively marked the last time anyone was executed on a death sentence in Kenya.

Nonetheless, owing to the mandatory nature of the death penalty for capital offences, death sentences continue being meted by courts 34 years later, with convicted persons being doomed to serving indefinite terms on death row at maximum security prisons.

We have seen the current and last two presidents use their prerogative of mercy to commute death sentences to life imprisonments, extending the moratorium on all executions.

Meanwhile, in a welcome development, a landmark ruling by the Supreme Court in December 2017 declaring the mandatory death penalty unconstitutional reopened the debate as to what purpose the death penalty serves in the criminal justice system and whether its continued existence in statutes adds value.

It’s time Kenya did away with; not only the mandatory death penalty, but also the death penalty in its entirety.

A fortnight ago (on October 10) the 19th World Day Against the Death Penalty was marked.

Currently, 108 countries worldwide have abolished the death penalty for all crimes, while eight others have abolished it for ordinary crimes; 28 countries, including Kenya, are abolitionists in practice while 55 others continue to retain and use the death penalty.

In 2020, 18 countries carried out executions, with China, Iran, Egypt, Iraq and Saudi Arabia leading.

The worldwide call to abolish the death penalty has intensified over the last few years, as more countries come to the realisation that it is, inter alia, against the fundamental human right to life, does not effectively deter crime and does more in perpetuating a culture of violence rather than one of justice.

A number of countries have thus completely abolished the death penalty for all crimes, with Chad, Malawi and Sierra Leone doing so within the last two years, bringing the total number of abolitionist states in Africa to 23.

In Kenya, the call for abolition is one that has been ongoing for almost a decade now, with many constitutional commissions and human rights groups, including the Kenya National Commission on Human Rights, the Power of Mercy Committee and the National Commission on Administrative Justice—conducting research, calling for public participation on the matter and making recommendations for abolition.

Yet, despite the evidence that it’s time to do away with the death penalty, Kenya still retains it in its laws.

Where then is the disconnect? Why are we dilly-dallying in abolishing the death penalty?

Having a moratorium on executions and abolishing the mandatory nature of the death penalty is a step in the right direction, but there is still more to be done.

Retaining it in law in the belief that it is a sufficient deterrent to those who may want to engage in crime, runs contrary to evidence from around the world which shows it has no unique deterrent effect.

A 2003 study done in Canada, 27 years after the country abolished the death penalty, showed that the murder rate had fallen by 44 per cent since 1975 when capital punishment was still enforced.

The US, with one of the largest inmate populations worldwide and the most recorded cases of wrongful convictions, has seen increased violent crimes despite retaining the death penalty and carrying out executions over the past couple of years.

The move by President Biden and numerous governors to put a moratorium on executions is hopefully a sign the country is prepared to reform its criminal justice system for the better.

Far from making society safer, the death penalty has a brutalising effect on society, serving only to endorse the use of force and to continue the cycle of violence.

In fact, as one J Van Rooyen once put it, “the death penalty is a very convenient political alternative to real, effective and difficult public protection and crime prevention programmes.

It is a cheap way for politically inclined people to pretend to their fearful constituencies that something is being done to combat crime.”

It’s not all gloom though. It is still possible to create a safe, crime-free environment without the use of the death penalty.

Responding to public demands for the reintroduction of the death penalty in South Africa in 1998, former prisoner and then President Nelson Mandela (now late) had this to say: “It is not because the death sentence has been scrapped that crime has reached such unacceptable levels.

Even if the death sentence is brought back, crime itself will remain as it is. What is required here is that the security forces must do their work and we are busy ensuring that the security forces have the capacity to deliver services, safety to the community. That is the issue, not the death sentence.”

Proactive action by the Parliament remains the weak link in bid to abolish death penalty in Kenya.

All it would take is to use the findings of the public participation reports gathering dust in shelves to draw up bills changing the provisions of the Penal Code that provide for the death sentence.

It does not require a constitutional amendment or referendum. The time to abolish the death penalty is now. — The writer is Programmes Manager and Lead Access to Justice at Crime Si Poa

More on Features