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Nyeri High Court Judge Justice John Mativo PHOTO: ALLAN MUNGAI/STANDARD
The High Court has ordered the State to release prisoners who were sentenced to death while still minors.
The court also ordered that criminal law be amended to do away with death sentence for children, of which they were left at the mercies of the President.
The nullified law dictated that child offenders sentenced to death be detained up until the President invoked mercy and freed them.
Justice John Mativo said the criminal law should be changed to align it with the one that protects the rights of every child in the Constitution.
“Children in conflict with the law cannot be subjected to death penalty,” the judge ruled.
He noted that leaving the President to determine how long a under aged person would remain in prison is usurping the powers of the court which pass the sentence.
Justice Mativo said: “It is important to clarify that detaining a convicted person aged below 18 years at the President’s pleasure should not be confused with the exercise of power of mercy under article 133 of the constitution.”
The case was filed by six convicts from different parts of the country and aged between 12 and 17.
By the time of the judgment, the six had been incarcerated for eight to 22 years.
Great concern
But the judge differed with the Director of Public Prosecution Keriako Tobiko, arguing since the Penal Code was a colonial law, enacted in 1930, it can no longer be applied after the 2002 Children’s Act taking effect.
The Act dictates that children have a right to life which should be protected.
“In my view sentencing of children is a constitutional matter of great concern, their rights are of great importance in our society,” he ruled.
He stressed that courts ought to treat children differently. “Courts are required to distinguish between minors and adult offenders since they must enjoy preferential sentencing treatment,” Justice Mativo said.
The Standard Group Plc is a
multi-media organization with investments in media platforms spanning newspaper
print operations, television, radio broadcasting, digital and online services. The
Standard Group is recognized as a leading multi-media house in Kenya with a key
influence in matters of national and international interest.
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