A commission has recommended the abolishing of the death sentence.
Instead, the Kenya Law Reform Commission (KLRC) proposes that capital offences such as murder, treason, robbery and unlawful administration of oath, for which the death penalty is prescribed, should attract life imprisonment. There have been several calls in the past for the scrapping of the death sentence.
The commission has proposed radical changes to the current law on death sentence and life imprisonment on several grounds - one being that the death sentence has not been carried out in Kenya since 1987.
In a detailed report compiled with guidance from the Supreme Court, KLRC also refers to the decision by President Uhuru Kenyatta to commute 2,747 death row cases to life imprisonment in 2016.
It was also noted that the wording (“shall be sentenced”) of the death sentence was ambiguous and left the judge much room to prescribe lesser penalties pegged on the context and personal examination.
“The very notable exception to this grant of sentencing discretion are offences that are subject to the death penalty. The rules of statutory interpretation dictate that when the words in an instrument are clear and unambiguous, they are to be interpreted in their ordinary sense and according to the rules of grammar,” reads a report on the death sentence compiled by the commission.
Consequently, KLRC has proposed to abolish the death sentence in murder cases and recommends the most a convict can get is 25 years in jail.
According to the proposals, while the death sentence is currently the only stipulated sentence, a proposal has been made to categorise murder cases into two - intentional and non-intentional.
If intentional, then the convict will be sentenced to life imprisonment without eligibility for parole.
“Any person convicted of murder that is not planned but where the result is intentional may be sentenced to life imprisonment without eligibility for parole for 25 years,” read the proposals.
While the only sentence for any act of treason currently is death, the new proposals seek to reduce this to life imprisonment without the possibility of parole for 25 years.
But the changes add that a person who commits treason that directly leads to the death of any person may be sentenced to imprisonment for life without eligibility for parole “and may be sentenced to death if the result is intentional”.
The same changes apply to robbery offences. Currently, if an armed person uses the weapon or instrument to wound the victim or to kill while on a robbery mission, death is the ultimate sentence.