No More Death Sentence, Supreme Court Rules

Kenya’s highest court has declared a section of the law that stipulates lifelong jail terms as “unconstitutional and contrary” to the Bill of Rights.

Deputy Chief Justice Philomena Mwilu led Supreme Court judges Prof Jackton Ojwang’ and Njoki Ndung’u are to deliver the judgment in a case filed by two death row convicts.

The petitioners, Francis Karioko Muruatetu and Wilson Thirimbu Mwangi, have been in jail for 17 years.

However, in Kenya, there have been no executions since 1987 for accused persons sentenced to death and those convicted serve a lifelong jail term unless pardoned by the President through the Power of Mercy law.

Murder, robbery with violence and treason are the capital offences in the Kenyan criminal law that attract the death penalty, hence convicts serve life sentences.
“The mandatory nature of the death sentence as provided for under Section 204 of the Penal Code is hereby declared unconstitutional,” ruled the three-judge Bench.

They added: “For the avoidance of doubt, this order does not disturb the validity of the death sentence, ” consequently meaning that the death sentence is still lawful but not mandatory in the country.

The judges said the section stipulates a brutal reality that is mandatory, contrary to the provisions of the Constitution as well as the Bill of Rights on the State ’s protection to each and every individual.

They, therefore, recommended that the Attorney-General, Director of Public Prosecutions and other relevant agencies prepare a detailed professional review in the context of this decision with a view to setting up a framework to deal with the re-hearing and sentencing of similar convicts.
They also ordered that a copy of the judgment be forwarded to Speakers of both Houses of Parliament and the Kenya Law Reform Commission for any amendment and formulation of the law with regard to the parameters of what constitutes life imprisonment.

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