“Consequently, we find that Section 204 of the Penal Code is inconsistent with the Constitution and invalid to the extent that it provides for the mandatory death sentence for murder.”
Supreme Court of Kenya, Francis Karioko Muruatetu v. Republic, 14 December 2017.
Overview
The last known execution in Kenya was recorded in 1987. Although the country does not have an official moratorium on executions in place, it has an established practice of not carrying out executions. While the courts in Kenya continue to impose death sentences, the country has made good progress against the death penalty.
On 24 October 2016, then-President Uhuru Kenyatta commuted the death sentences of 2,747 people to life imprisonment. In December 2017, the Supreme Court in Francis Karioko Muruatetu v. Republic declared the mandatory imposition of death sentences in murder cases to be unconstitutional. The judgment empowered judges in Kenya to exercise discretion in sentencing in capital cases, and also meant that judges were not required to automatically sentence to death a defendant convicted of murder.
In March 2018, a 13-member task force was established to review the legislative framework on the death penalty and other matters and set up a framework to deal with rehearing of sentencing of persons on death row. This was done to implement the order of the Supreme Court in Francis Karioko Muruatetu v. Republic. In October 2019, the Task Force published its report where it made the following key findings:
- The death penalty is not an effective deterrent (it does not stop people from committing capital offences);
- There is a growing consensus that extended time on death row, if not the death penalty itself, constitutes inhuman punishment in violation of international law, regional law and most modern constitutions, including those similar to Kenya’s;
- The world – but more specifically, African countries – is moving toward abolition at a minimum with respect to all but the most serious crimes;
- The justice system is not perfect, and this leads to a disproportionate number of poor or vulnerable persons, many who are, in fact, innocent, being sentenced to death and
- Kenyans, when presented with the reality of injustice and hardship faced by people in the correctional system and the truth about the humanity and fallibility of many who are incarcerated, are willing to accept that offenders can reform their lives and become productive members of society.
The Task Force recommended Parliament to abolish the death penalty entirely and to substitute for life imprisonment where the Penal Code previously provided for the death penalty, with the option of life imprisonment without parole for the most serious of crimes. If not abolished, the Task Force recommended that the death penalty should only be reserved for the rarest of rare cases involving intentional and aggravated acts of killing; to enact the current Sentencing Policy Guidelines as regulations in order to have the force of law, in addition to formulation of Re-sentencing Regulations to guide the sentencing and re-sentencing processes; and to establish a new system of parole for people serving a life sentence, including a clear definition and degrees of offences for purposes of determining eligibility for parole.
On 6 July 2021, the Supreme Court of Kenya issued a ruling providing directions on the implementation of its 2017 judgment in Muruatetu & Another v. Republic declaring the mandatory death penalty for murder unconstitutional. In the ruling, the Court clarified, among other things, that the 2017 judgment did not apply to other provisions for a mandatory death sentence such as treason, robbery with violence and attempted robbery with violence, but that these can be challenged through the courts with a likely “similar outcome”. As for murder, the Court ruled that if it is not abolished, the death penalty must be restricted to “the rarest of rare cases involving intentional and aggravated acts of killing”. The Court ruled that all of those sentenced to death for murder as a mandatory punishment were entitled to a re-sentencing hearing. In 2023, 606 commutations of death sentences were granted.
Ongoing Initiative to Abolish the Death Penalty
Four bills to abolish the death penalty are currently pending in Parliament. First, the Preservation of Public Security (Amendment) Bill, 2023, introduced in August 2023, seeks to abolish the death penalty for offences related to the preservation of public security. Second, the Legal Aid (Amendment) Bill, 2023, introduced in September 2023, seeks to delete references to the death penalty in the Legal Aid Act (No. 6 of 2016). Third, the Prisons (Amendment) Bill, 2023, introduced in September 2023, seeks to amend the Prisons Act, CAP 90 Laws of Kenya, to abolish the death penalty and the manner of its execution. Fourth, the Penal Code (Amendment) Bill, 2023, introduced in September, seeks to amend the Penal Code, Cap 63 Laws of Kenya, to abolish the death penalty.
Take Action
Sign on to the letter on the right urging members of the National Assembly of Kenya to take the necessary steps to fully abolish the death penalty. Members of the National Assembly are responsible for considering and passing all the Bills seeking to abolish the death penalty into law.