Supreme Court of Kenya Declares Nation’s Mandatory Death Sentences Unconstitutional

The Supreme Court of Kenya has declared the nation’s manda­to­ry death sen­tenc­ing pro­ce­dures uncon­sti­tu­tion­al. In a December 14, 2017 rul­ing that could affect 7,000 death-row pris­on­ers, the high court over­turned Section 204 of Kenya’s Penal Code, which required that judges impose death sen­tences upon con­vic­tion of mur­der or armed rob­bery. The deci­sion resolves con­flict­ing rul­ings by the coun­try’s low­er courts of appeal, and grants new sen­tenc­ing hear­ings to those cur­rent­ly sen­tenced to death. 

Death-row pris­on­ers Francis Karioko Muruatetu and Wilson Thirimbu Mwangi had chal­lenged Kenya’s manda­to­ry death penal­ty, argu­ing that com­pul­so­ry impo­si­tion of the death penal­ty vio­lat­ed the inde­pen­dence of the judi­cia­ry by requir­ing judges to impose a sen­tence that was pre-deter­mined by the leg­is­la­ture. According to Fred Ngatia, one of the pair’s lawyers, the prac­tice ​“fouls the doc­trine of sep­a­ra­tion of pow­ers” by pre­vent­ing judges from weigh­ing mit­i­gat­ing fac­tors. The defen­dants also argued that depriv­ing judges of dis­cre­tion over whether to impose a death sen­tence vio­lat­ed the right to a fair tri­al and con­sti­tut­ed an arbi­trary depri­va­tion of life. 

The court’s jus­tices agreed and direct­ed the Attorney-General, the Director of Public Prosecutions, and oth­er gov­ern­ment agen­cies to speed­i­ly review all cap­i­tal cas­es of mur­der and armed robbery. 

In 2010, Kenya’s Court of Appeal ruled in favor of death row pris­on­er Geoffrey Ngotho Mutiso, who had chal­lenged the manda­to­ry death sen­tence pro­vi­sion on the grounds that it denied judges the oppor­tu­ni­ty to con­sid­er mit­i­gat­ing cir­cum­stances that could spare a defen­dan­t’s life. Three years lat­er, a dif­fer­ent pan­el of the appeals court restored the controversial provision. 

Oluwatosin Popoola, Amnesty International​’s Adviser on the Death Penalty, said the Supreme Court’s rul­ing is a step towards abol­ish­ing the ​“cru­el and inhu­mane” pun­ish­ment. ​“It’s now time for the Kenyan author­i­ties to take the required legal steps to abol­ish the death penal­ty ful­ly and join the 105 coun­tries that have com­plete­ly con­signed the pun­ish­ment to his­to­ry,” he said. 

Kenya has not exe­cut­ed any­one since 1987 when Hezekiah Ochuka was con­vict­ed of trea­son and hanged for par­tic­i­pat­ing in an attempt­ed coup. In 2009, President Mwai Kibaki com­mut­ed the sen­tences of more than 4,000 death pris­on­ers to life. In 2016, President Uhuru Kenyatta com­mut­ed the death sen­tences of 2,747 death-row pris­on­ers to life.

The Death Penalty Project, an inter­na­tion­al non-gov­ern­men­tal orga­ni­za­tion that works to pro­mote and pro­tect the human rights of those fac­ing the death penal­ty in British Commonwealth coun­tries, Africa, Southeast Asia, and the Caribbean, has been lit­i­gat­ing this issue in Kenya for more than a decade. Kenya is the thir­teenth coun­try in which it has suc­cess­ful­ly chal­lenged manda­to­ry death sen­tences. Parvais Jabbar, the Project’s Co-Executive Director called the court’s rul­ing a ​“momen­tous deci­sion … [that] will have a huge impact,” even beyond the thou­sands of pris­on­ers cur­rent­ly on Kenya’s death row. “[W]e hope it will also pave the way for fur­ther reform of the death penal­ty with­in Kenya and the Africa region more wide­ly,” Jabbar said.