Many people, including leaders, members of the public and social media commentators, have been horrified by the deaths in Shakahola. Several people have publicly advocated reintroducing the death penalty in Kenya to punish those responsible for the over 210 deaths.
For many death penalty supporters, it should be applied to the most heinous crimes such as murder, robbery with violence, treason, terrorism, defilement, and others.
Even though death penalty has been part of Kenyan law since independence and even after the promulgation of the 2010 Constitution, no one has been executed since 1987. Therefore, Kenya is a de facto (in practice) abolitionist country but de jure (by law) retentionist country. Although we have shelved the death penalty, it can be revived at any time depending on the administration in power, which may be moved by public sentiment.
People are continually found guilty of capital offences every year and sometimes sentenced to death, such as the officer who was recently convicted of murdering lawyer Willie Kimani, his client, Josephat Mwendwa and their driver, Joseph Muiruri.
According to Amnesty International’s Annual Death Penalty Report (2023), 79 men and one woman were sentenced to death in Kenya, bringing the total number of people on death row to 656. Within the same period, 10 people were exonerated of the death penalty.
After the Supreme Court declared the mandatory nature of the death penalty unconstitutional in the Muruatetu case, many people who were sentenced to death for murder or robbery with violence were allowed to request a review of their sentences, which in some cases resulted in their sentences being reduced.
As a result of the above ruling and the recommendations of the Taskforce to Review the Mandatory Death Sentence, many people on death row have had their sentences commuted, giving them a new lease on life.
Opponents of the death penalty strongly believe that gaps in the criminal justice system have allowed innocent people to sit on death row or be executed. To them, the system’s infallibility is sufficient justification to abolish the practice. There is no evidence that the death penalty deters criminal behaviour. States that abolished it in the USA enjoy lower crime levels.
Also, it is overwhelmingly applied unjustly to the marginalised in society, such as racial and ethnic minorities, the poor and persons with mental health issues. For most, the argument is that it is inhuman and violates international human rights standards such as the Universal Declaration of Human Rights and the International Convention on Civil and Political Rights, which emphasise the importance of human life.
Another primary justification is the belief that the death penalty is a form of torture outlawed under Articles 25 and 29 of the Constitution. This is a cruel, inhumane, and unusual form of treatment and punishment.
Other countries such as Kazakhstan, Papua New Guinea, Sierra Leone, and the Central African Republic have abolished the death penalty for all crimes. Meanwhile, Equatorial Guinea and Zambia have abolished the death penalty for ordinary crimes only. Kenya is hoped to follow suit and eliminate this degrading punishment.
Despite Kenya’s moratorium on the death penalty since 1987, death row convicts continue to face psychological and physical anguish, further violating their right to dignity, which is inherent to all people despite their crimes.
As a country, we have come a long way through the efforts of victims, the Attorney General’s office, KNCHR, CSOs and pro-bono lawyers to reinforce the dignity of convicted persons. Perhaps we should consider the global trend toward abolishing the death penalty.
First published in The Standard on 18th May 2023. Kindly reproduced here with permission from The Standard.
Demas Kiprono is a human rights lawyer and a Campaign Manager at Amnesty International Kenya. He writes in his personal capacity. Email: [email protected]