Murderers, sex pests, and those found guilty of treason might get a maximum of 30 years in jail if a raft of changes to the country’s criminal law by the Judiciary are accepted by Parliament.
The two bills handed by Chief Justice Martha Koome to Parliament- Criminal Procedure Code (Amendment) Bill, 2023 and Penal Code (Amendment) Bill, 2023 - seek to amend how Kenya’s law books deals with capital offenders.
The current law dealing with crime was drafted by Britain in the 1930s. It provides for death if one is found guilty of murder, robbery with violence and treason.
The Judiciary has also proposed that replacement of the words such as manslaughter with second degree murder and Idiots or Imbecile with intellectual and psychosocial disability.
However, the Justice Koome-led arm of government has categorised murder into three categories. In the proposal, those who are found guilty of first degree murder may be sentenced to death. Those found guilty of second degree murder will be liable to life imprisonment.
The judiciary has also introduced first degree robbery and second degree robbery. Those who steal using guns, maim or harm, or use chemicals will be liable to death if found guilty while the second degree robbery will be liable to life imprisonment.
However, there is another separate proposal to have death sentence completely expunged from law books, and in its place, those found guilty of a capital offence be sentenced to life.
Details from a committee set to review the two laws indicate that this will be the first time Kenya is seeking to overhaul the entire criminal procedure code and penal code.
Kenya’s only mode of killing prisoners is through hanging. Hezekiah Ochuka was the last Kenyans hanged on July 9, 1987, at Kamiti Prison, at the age of 33 after being found guilty of the failed 1982 coup.
From then on, those who were sentenced to death were kept waiting until they died a natural death.
At the same time, the Supreme Court declared the mandatory death sentence to be unconstitutional in a case filed by Francis Muruateru and Wilson Mwangi. This kicked another wave of prisoners who had been slapped with death to seek a review of their sentences.
Nevertheless, the court declared that the death sentence is still legal.
After former President Mwai Kibaki took power, he commuted the sentences of all those who were on death row to life. The only problem was that a life sentence in Kenya meant one could only leave prison after he or she had died.
However, the Court of Appeal in July this year altered the life sentence matrix. It declared that life and death sentences in Kenya meant the same thing. The life sentence was found to be unconstitutional.
Justices Pauline Nyamweya, Jessie Lesiit, and George Odunga unanimously agreed that it is unfair to outlaw mandatory death sentences, only to order a person to remain behind bars until they die.
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According to the three judges, the purpose of jailing a person is to either deter, rehabilitate, denounce, or retribute for the offence committed.
However, they asserted that a life sentence should not mean the natural life of a prisoner.
“We are equally guided by this holding by the Supreme Court of Kenya, and in the instant appeal, we are of the view that having found the sentence of life imprisonment to be unconstitutional, we have the discretion to interfere with the said sentence,” the bench headed by Justice Nyamweya ruled.
The judges were determining an appeal filed by Julius Kistao against the State. Kitsao was charged with defiling a four-year-old. In his unsworn response to the allegations, Kistao stated that on the material day, January 20, 2013, he heard noises at his neighbour’s house.
Upon checking, he reported to the village elder but was beaten and taken to the police.
In October of the same year, the magistrate handed him a life sentence. He appealed the decision before the High Court, however, Justice Reuben Nyakundi dismissed his case.
Undeterred, he moved to the Court of Appeal. His argument was that he was not served with the witness statements and was not assigned an advocate during the hearing. Kitsao also argued that Section 8 (2) of the Sexual Offence Act is unconstitutional for giving a mandatory life sentence.
The convict stated that at the time he was brought to court, he was 15 years old. However, an age assessment indicated that he was 18 years at the time he committed the offence.
The judges observed that in his mitigation, Kitsao did not plead that he was young at the time. Further, they were of the view that his actions toward the minor were likely to affect her life.
They directed that he instead serves 40 years for deterrence and rehabilitation.
An analysis of convicted persons between 2019 and 2021 indicates that Kenya had 511 convicts, among them four women, handed a life sentence in 2019. In 2020, there were at least 128 men and two women imprisoned for life while in 2021, some 268 men and five women were jailed for life.
The proposal also intends to take away the President’s power to determine how long mentally ill persons and minors will stay incarcerated.
Instead, anyone found to be guilty of an offence but insane will be taken to a mental hospital and the status of his or her wellness is ascertained.
The judiciary has proposed that sections of law criminalising prostitution and those aiding the vice be repealed alongside sections making it a crime to be caught idling.
The proposal also includes the rights of intersex persons.