Death row quagmire continues

Pravin Bowry

President Kibaki’s decision to commute the sentences of over 4,000 death row convicts to life imprisonment only deepens the legal quagmire.

In an article in CCI of January 28, I stated: "The Kenyan situation on death row convicts remains a grave legal dilemma and it appears that the law is being blatantly flouted by the President, Attorney-General and Commissioner of Prisons. The Court of Appeal and High Court judges have turned a blind eye to reality for over two decades".

The President’s intervention most unfortunately will not bring any change whatsoever.

Magistrates will continue to pass death sentence to those accused of robbery with violence. High Court and Court of Appeal will continue to confirm these sentences and the Commissioner of Prisons will still not fulfil the sentences. The futility of the legal shenanigan is apparent.

Under Section 46 of the Prisons Act, only convicted criminals sentenced to imprisonment for a period exceeding one month earn a remission of one third of the sentence for good conduct. Death-row (but now life) convicts are not entitled to remission.

Confusion reigns

A life sentence means no freedom unless the President under Section 27 of the Constitution exercises his prerogative of mercy. He can pardon or reduce the sentence after a report from the trial judge and on recommendations of Advisory Committee of Prerogative of Mercy.

The law on parole in Kenya is not as rigidly and explicitly followed as, say, in the UK where the trial judge provides for the minimum sentence the convict must serve.The President’s decision, if meant to decongest prisons, will just do the opposite. Bearing in mind the acute human suffering, for the complainants, accused, their families and judicial officers imposing the sentences, a final solution is urgently called for. Keep the death penalty on the statute book or to scrap it!

Merits of death sentence have been debated internationally and its pros and cons highlighted statistically.

The Presidential action has made Kenya a defacto abolitionist State and the earlier Parliament declares it so the better.

The confusion in the definition of the offence of robbery with violence needs examination. The distinction of simple robbery and robbery under Section 296 (2) of the Penal Code needs to be extinguished and the anomalies of two parallel offences in the same section brought to an end.

Seek deterrents

Other than deciding once and for all whether death penalty should be on the statute book, Parliament must examine the Prisons Act, the Penal Code and the Criminal Procedure Code and examine the rules on parole, remission and prerogative of mercy not only in death row matters but other offences too.

With rising crime rates, armed robberies, incidents of deaths by police officers -— considering them as summary death sentences and extra-judicial killings — better crime deterrent modes must be sought.

Going by the recent formation of task forces, I see another one on the horizon and I will await the inevitable non-implementation of the recommendations for years, something which we must avoid.

Back to square one on matters of death row convicts!

The author is a lawyer in Nairobi

{bowryco@iconnect.co.ke }