Surviving the noose: Prison life and what it costs you

From left:Supreme Court Judges Njoki Ndungu, Deputy Chief Justice Philomena Mwilu and Justice Jackton Ojwang after the ruling on death penalty. [Boniface Okendo, Standard]

It may not be an easy ride to freedom after all for prisoners on death row as the ripple effects of Friday’s Supreme Court ruling abolishing the death sentence start being felt.

Families of those who have been murdered have expressed outrage at the court’s decision, saying abolishing the death sentence is tantamount to letting murderers get away with their actions.

Legal experts, however, say executing the ruling will not be a walk in the park, especially for prisoners whose cases were determined years ago.

In Kirinyaga, Mary Wambui, whose Standard Seven son Martin Muchiri was allegedly murdered by his teacher Davis Kariuki on April 2, 2014, is an angry woman. Kariuki is accused of committing the murder at Roka Preparatory School in Mwea where he is the proprietor.

“Muchiri who should have been joining Form Three next month was my only child and I am single. You can imagine what I am feeling if convicted murderers will be getting it that easy,” she says.

“His fellow student who was the key witness disappeared soon after the hearing of the case commenced and has never been traced, yet he has the crucial evidence of that fateful morning,” she says.

While delivering its ruling on the death penalty matter, which has been a hot potato for the last 30 years since Kenya last hanged a prisoner, the Supreme Court ordered all those on death row to be brought back to court for re-sentencing.

Criminal lawyer Cliff Ombeta, however, says it will not be as easy as it looks on paper.

“For re-sentencing to be done, it means the judge has to go through the proceedings first,” he says.

“But remember once a matter has been heard and determined and you have cleared all your avenues for appeal, the court is free to discard your file after six years. Do you think the files for cases determined in the ‘80s up to early 2000s are still available? Will they retry those affected?”

More legal space

Ombeta, however, says that by giving judges more legal space in delivering rulings on capital offences, accused persons will be the biggest winners. Before the Supreme Court’s decision, anyone found guilty of a capital offence was sentenced to death.

This includes those who are placed at the scene of crime through circumstantial evidence such as being found with an item that was stolen during a violent robbery.

Last year during an interview with Clement Munyao, a death row inmate in Kamiti over the infamous 2009 murder of Central Bank of Kenya employee Moses Gituma, it emerged that Munyao’s offence was purchasing a mobile phone that was tracked to the scene of crime.

“I was doing a case in Kibera the other day and one of the boys who was sentenced to death was connected to the crime just because he carried the weapon used,” says Ombeta.

“Judges will now have the freedom of determining how they will sentence offenders depending on culpability. But this does not mean the death sentence has been abolished totally.”

Kenya has about 7,000 prisoners on death row, some of whose sentences have been commuted to life. President Uhuru Kenyatta commuted to life 2,747 prisoners who were on death row in October last year. They will, however, stay in prison till they die or until the Power of Mercy Committee decides to free them.

Prisoners on death row are not involved in doing chores while in prison, they live in segregated blocks and can only be incarcerated at maximum security prisons like Kamiti, Lang’ata, Shimo La Tewa, King’ong’o and Kodiaga.

At Kamiti, those waiting for appeal of their cases are held in Isolation Block G and are rarely let out apart from a once-a-day sunshine break for 30 minutes or during meal time. Those awaiting the hangman’s noose are held in ‘Condemn A’ which also contains the execution chamber that is serviced weekly.

Jane Munyoki, the director of Legal Resources Foundation, says this amounts to torture.

“They are also humans. The uncertainty of the death sentence is very tortuous in its very nature,” she says.

“The fact that we have capital offences being committed means we have a problem with society. This is why we need to find the root causes but I am not saying offenders should be let to get away with their crimes.”

The last people to be executed were Hezekiah Ochuka and Pancras Okumu, two Kenya Air Force personnel who were found guilty of treason after plotting the failed August 1982 coup.

Kenya Prisons Service insiders say in the years that executions were still carried out in prison, a convict would be brought from the cell at 4am with their hands tied at their backs and a hood placed on their heads.

Present at the chamber would be the head of the prison, a priest and a doctor who determines if the prisoner is of sound mind. Once inside, a siren would go off before the executioner would tie a rope around the convict’s neck. A lever would be pulled to open the trap door beneath the prisoner’s feet, instantly breaking their neck. They would then be buried in an unmarked grave in the prison’s compound.

Today, while no one is being hanged anymore, prisoners on death row are considered high risk offenders and the officer-to-prisoner ratio employed to guard them is higher.

It costs at least Sh175 per day to keep a prisoner behind bars, which means Kenya spends Sh1.2 million a day to keep capital offenders behind bars. This translates to about half a billion shillings a year.

Long overdue

Criminal lawyer Charles Mwalimu says the ruling by the Supreme Court was long overdue since having the law in place was a waste of time and government resources.

“It doesn’t make sense having people sentenced to die each year but they are not being hanged,” says Mwalimu.

“Even if you hang someone, will it bring back to life the person who was killed in the case of murder? The most important thing is to reform our criminal justice system to deter crime.” It is expected most if not all of those on death row and life sentences will apply for re-sentencing. Once a person is sentenced they are given a window to appeal. This means that if any prisoner is not satisfied with the new sentence, they can appeal and this will create a backlog of cases.

As of yesterday evening, the country’s judicial system had a backlog of 300,000 cases. A total of 344,000 cases were filed last year alone. Out of this 1,147 were murder cases, one of the capital offences that attracts a death sentence.

Margaret Wahome says murder suspects if found guilty should suffer death to serve as a warning to others. “Since they also killed, they should face the music,” she argues.

Peter Kamau, whose brother is facing a murder charge, says the decision was right as death sentence is against human rights. He says his brother was arrested following the death of a neighbour after a bar brawl.

“Let justice take its course but the court should not punish the offenders by death,” says. 

The offences that carry the death penalty in Kenya are treason, murder and robbery with violence. Currently, there is no prisoner in Kenya on death row charged with treason. Robbery with violence is tried at a Magistrate’s court while murder is tried at the High Court.

Head of Nery GK Prison Patrick Armando says the ruling would give death row inmates a positive attitude and make handling them easier.

“There is a positive effect to the judgment. There will be a true value to the correction and rehabilitation of the inmates and as such even the skills that they gain from the prison will have meaning, knowing that they will utilise them when the sentences are concluded,” he says.

Ombeta, however, argues that outlawing the death penalty will lead to an increase in violent crime and murders.

[Additional reporting by Allan Mungai]