Listen to This Article Enhance your reading experience by listening to this article.

Every year on October 10, we commemorate World Day Against the Death Penalty.

Kenya continues to retain the death penalty in its statutes but exercises an informal moratorium (de facto) with the President exercising his powers under Article 133 of the Constitution to issue commutations of these sentences to life imprisonment. The last such commutations were in 2016 when a total of 2,747 inmates on death had their sentences commutated to life imprisonment. As of October 2021, the number of inmates on death row was approximately 600.

The death penalty traces its origin back to the 18th century B.C. during the tenure of King Hammurabi of Babylon when he codified the death penalty for 25 crimes.  In Kenya for instance, the then Governor General Sir Evelyn Baring imposed the death penalty on any person that administered the Mau Mau oath. Currently, the death penalty is provided for in the Penal Code for murder, robbery with violence, attempted robbery with violence, administering an oath purporting to bind a person to commit a capital offense and treason.

Despite this being the law, Kenya has not executed anyone since 1987 with the last person believed to have faced this fate being John Ochuka, who was convicted of treason.

However, the fact that it is still in law means judicial officers still continue passing this sentence to those found guilty of the above offenses. Pre-2017, the law was crafted in mandatory terms meaning that judicial officers had no other sentence to issue but the death penalty for those found guilty.

However, in a landmark ruling by the Supreme Court in December 2017, famously known as the muruatetu case, the mandatory nature of the death penalty was declared unconstitutional. This was indeed a major progress in the advocacy towards abolition of the death penalty. However, the same court in July, 2021, in what can be termed as a claw back to the gains in this discourse, gave further directives that limited the application of the muruatetu case to only murder offenses leaving out the other offenses, especially robbery with violence, and attempted robbery with violence.

Kenya National Commission on Human Rights (KNCHR) has been at the forefront to champion the rights of these inmates through its constant inspections and monitoring of prisons and has as such brought afore their plight. The mere fact that one is sentenced to death indefinitely without knowing the date or time of execution is in itself mental torture. The grounds for retaining the death penalty have been diminishing globally. Research has shown that most members of the public are moving away from retributive to restorative justice. According to a survey co-authored by KNCHR in October 2021, 51 per cent support the retention of the death penalty, with only 32 per cent strongly in favour. From the commission’s other studies over the years, inmates on death row share the same characteristic; they are poor, have no or little education, and most did not benefit from legal representation during the trial process.

This is a worrying indicator that the application of the death penalty disproportionately targets the poor. According to a report by the Taskforce set up by the Attorney General in 2018 to look into the issue of the death penalty, a majority of the inmates on death row ranged between the ages of 26 and 35 years.

The death penalty has now outlived its purpose when you consider its origin and how it was imposed on African states during colonialism.  The fact that inmates continue being sentenced to death indefinitely despite there not being any execution amounts to torture, cruel and inhumane punishment. 

— Anne Okutoyi-Muchimuti is a Director at the Kenya National Commission on Human Rights and advocate of the High Court