A landmark ruling made by the Supreme Court Thursday could save a number of death-row inmates from the hangman’s noose.
Supreme Court judges Thursday declared unconstitutional section 204 of the penal code, which prescribes death sentence for any person convicted of murder.
The judges also directed that death row prisoners appear before the High Court for fresh sentencing.
The directive opens the possibility for some inmates walking to freedom if the substituted jail term is equivalent to or lesser than the time they have been behind bars.
There is also the likelihood of a lighter sentence that will ensure the convicts - who on death row had no hope of ever getting out of prison- have a new lease of life outside prison upon completion of their terms.
However, serving a longer jail term or still having the death sentence upheld are other possible outcomes at the completion of the High Court sentencing hearings that will ensue once the Attorney General and Director of Public Prosecution set up a committee to review the sentences.
“The AG, DPP, the Kenya Law Reforms and other relevant agencies shall prepare a detailed professional review committee made with a view of setting up fresh hearing on sentencing of all prisoners who had been sentenced to death,” ruled the judges.
There are over 7,000 death-row prisoners. The number has been rising because Kenya has not executed any death row prisoner since 1987 when soldiers convicted for the 1982 attempted coup were hang.
After being condemned to death, inmates now have an opportunity to have the punishment reviewed to consider the circumstances for their sentencing.
According to the Supreme Court, High Court Judges will first consider ages of the offenders, whether they were first offenders and whether they pleaded guilty or not.
Others considerations include the current behaviour and the record of the offender, the remorse shown, whether the offence was in response to gender-based violence, probability of rehabilitation and social re-adaption and any other factor the High Court finds relevant.
According to the Supreme Court judges, death row prisoners were not properly sentenced given that the mandatory death sentence violated their right to dignity, right to life and right to a fair trial.
“To our minds, what Section 204 the Penal Code is essentially saying to a
convict is that he or she cannot be heard on why, in all the circumstances of his or
her case, the death sentence should not be imposed on him or her,” the judges ruled.
“We think that a person facing the death sentence is most deserving to be heard in mitigation because of the finality of the sentence. To our minds a formal equal penalty for unequally wicked crimes and criminals is not in keeping with the tenets of fair trial,” they stated.
The ruling arose from a case filed by two convicts, Francis Karioko and Wilson Thirimbu, which was determined by a six-judge bench composed of Chief Justice David Maraga, his deputy Philomena Mwilu, Justices Njoki Ndung’u, Jackton Ojwang, Smokin Wanjala and Isaac Lenaola.
Justices Mwilu, Njoki and Ojwang read the judgment.
There are five crimes for which the contested law prescribed death as the only sentence for convicts:murder, treason, oathing for criminal activities by proscribed criminal outfits, robbery and attempted robbery with violence.
The judges also directed the National Assembly and Senate Speakers, with the help of the Attorney General’s office, to commence the process of changing the Penal Code to reflect their ruling on the unconstitutionality of mandatory death sentence and what ought to constitute a life sentence.
The AG was given 12 months to prepare a progress report on how the process of hearing afresh the sentencing of the death row convicts was proceeding and hand it to the Supreme Court.
The court however pointed out that death penalty was still legal.
“For the avoidance of doubt, this judgement does not outlaw death penalty,” they ruled.
Although the judges declined to set the number of years in prison that should constitute a life sentence, they admitted that the Constitution does not clearly define what life sentence is, creating the assumption that it should be served until the inmate’s death.
According to the judges, a life sentence should not necessarily mean the natural life of the prisoner but could also mean a number of fixed years in prison.
“It is not the court to determine the number of years that a person whom the society feels has offended should serve. That is the preserve of the legislature to amend the laws to comply with international treaties,” ruled the judges.
According to the court, the right to a fair trial for murder suspects had been limited as there was only one pre-determined verdict-death.
The judges ruled that their power to give appropriate verdict in a capital offence criminal case was taken away and thus limiting the accused the right to fair trial.
“It is without doubt the court ought to consider evidence adduced before it, the nature of offence and the mitigating factors in order to inform itself as to what sentence it is going to pass,” they ruled.
According to the Judges, Section 204 meant that the accused person had no right to argue before court as to why a death sentence should not be imposed on him or her.
“Section 204 deprived the court the right to use its discretion in a matter of life and death. We are therefore in agreement with the petitioners that the section is unconstitutional,” they ruled.
The court ruled that a verdict should be individualised, meaning the court has to consider the uniqueness of each case before coming up with a final order.
“Failing to allow the judge’s discretion, taking into account of the convict’s mitigating circumstances, the diverse character of convicts, the circumstances of the crime and instead subjecting them to the same mandatory sentence violates their right to fair trial,” the highest court in the land declared.
The judges said the ruling would put to rest the administration of the death penalty.
“We will now settle the quagmire that has been in our courts for a while now,” they ruled.
Effective after the ruling, courts will now not automatically hand death sentences for capital offences.
“Any court dealing with a criminal matter is allowed to exercise judicial discretion by considering any mitigating factors when sentencing any person charged with and found guilty of that offense,” ruled the judges.