Death or life sentence? Opinion split on penalty for murder, robbery

Gallows in nature. [File Courtesy]

Last Thursday, Justice Kizito Magare handed Julius Macharia the  death sentence for defiling and then killing 7-year-old Tamara Blessing Kabira.

Justice Magare said that although Macharia had admitted to committing the crime, and sa ing the court’s time, the gravity of the crime and the betrayal of trust warranted the harshest of the sentences that the country can offer.

Tamara’s parents expressed satisfaction that Macharia would pay for his sins.

In reality, Macharia will most likely never have a day with the hangman, as Kenya last executed a convict on July 9, 1987, at Kamiti Prisons. This was Hezekiah Ochuka, who was found guilty of treason after the failed 1982 coup.

Instead, Macharia may have his life commuted to life.

The court’s sentence to him re-ignites the debate on whether Kenya should abolish the death sentence for capital offences and if a life sentence should mean a convict will spend several years behind bars.

As Macharia was being sentenced, miles away at Milimani High Court, a group of 28 convicts was filing a case seeking to have a mandatory life sentence declared unconstitutional.

According to the group led by Solomon Ngatia and Joseph Lodiaka, criminal law does not allow a magistrate or a judge to weigh the gravity of the case before determining the sentence.

They argued that a life sentence is equivalent to a death sentence, as a convict will only leave prison in a coffin.

They suggest that the life sentence should be between 20 and 40 years.

In their case, they targeted Sections 3(3), 8(2), 8(4), 9, 10, 11(1), 15, and 20(1) of the Sexual Offences Act, and Section 124 of the Evidence Act.

Ngatia and Lodiaka are not the first to challenge life sentences. There is a second case in two years.

Erastus Ngula and Paul Odhiambo had asked the court to find that it is unfair and unconstitutional for a person found guilty of murder or robbery with violence not to be accorded an opportunity to pay for their sins using money, or simply a fine.

Shortest sentence

Under current law, Section 24 of the Penal Code provides that for capital offences, a person may be sentenced to death and may serve a varying number of years depending on, among other things, mitigating factors and circumstances under which a crime was committed.

However, Section 26 (3) (1) bars the substitution of a fine where a minimum sentence is provided.

The shortest capital offence sentence in Kenya’s records so far is of a woman who was jailed for one day after the court found that despite the State having proved that she killed her husband during a quarrel, she had endured an irresponsible, violent, and brutal human being who did not treat her with any dignity or respect.

Ngula and Odhiambo argued that since the Supreme Court vacated mandatory minimum sentences for murder cases, those convicted for such crimes should be eligible to pay fines.

Justice Chacha Mwita, in his judgment, said the Penal Code is neither discriminatory nor excessive for requiring anyone who has been found guilty of murder or robbery with violence to serve a jail sentence without an option of a fine.

According to him, the two capital offences are the vilest acts that can be committed against a human being. He said that anyone convicted of such crimes should be punished as retribution for the victims.

He also said that the culprits need to be rehabilitated, something which cannot be done if they are released after paying a fine.

On the other hand, the Court of Appeal has a different view of sentencing sex pests, robbers, treason and killers.

The second-highest court initially ruled against holding convicts until they die in prison.

Justices Pauline Nyamweya, Jessie Lesiit, and George Odunga were the first to unanimously agree that it is unfair to outlaw mandatory death sentences, only to order a person to remain behind bars for life.

The court, for a second time in 2023, waded into the legality of life sentences in Kenya and ruled that the maximum a person can serve as a life sentence should be 30 years.

The Judgment by Justices Hannah Okwengu, Hellen Omondi and Joel Ngugi was unanimous last week that life imprisonment is cruel and degrading treatment owing to the uncertainty that one will leave prison alive.

“On our part, considering this comparative jurisprudence and the prevailing socio-economic conditions in Kenya, we come to the considered conclusion that life imprisonment in Kenya does not mean the natural life of the convict. Instead, we now hold, life imprisonment translates to thirty years’ imprisonment,” the bench headed by Justice Okwengu ruled.

The judges were determining an appeal filed by Evans Nyamari. He was accused of defiling a six-year-old child.

The Director of Public Prosecution called six witnesses while the convict gave a sworn testimony, but did not call a witness. The magistrate’s court slapped him with a life sentence.

Aggrieved, he moved to the High Court claiming that the age of the minor was not proved and he was not properly identified. Justice Wilfrida Okwany dismissed his appeal and upheld both the conviction and the sentence.

He then moved to the Court of Appeal. However, he abandoned the argument that the minor’s age was not proved, and the identification. He instead asked the court to consider his argument that the sentence was excessive.

Second chance

Nyamari urged the court to reduce the sentence of life imprisonment to a term sentence, taking into consideration the mitigating factors in the case.

The debate on outlawing the execution of convicts or keeping them behind bars until death is gaining momentum.

Justice Okwengu, Omondi, and Ngugi observed that there is concurrence in Africa and Europe that a prisoner deserves a second chance.

In Africa, they singled out Zimbabwe and South Africa. In Zimbabwe, a prisoner is entitled to parole after 25 years. President Emerson Mnangagwa this year gave a clemency order and remitted life imprisonment to 25 years.

South Africa, however, has a different stance on life imprisonment. The courts there declined to outlaw sections of law providing life imprisonment as a punishment.

Instead, the judges ruled that life sentences should have a parole.

The South African Supreme Court of Appeal was unanimous that a prisoner should be considered for parole after serving 20 years of the sentence. If a prisoner is 65 years or more, he or she is entitled to parole after serving at least 15 years.

 The bottom line in South Africa was that courts should not hand excessively long sentences as a way of ensuring a prisoner is not released before the expiry of the sentence.

In Europe, Germany Federal Constitutional Court found that life imprisonment is not in itself unconstitutional. However, it ruled that keeping a person behind bars without a realistic chance of ever regaining their freedom is against human dignity.

Malaysia and Pakistan

The German court set 15 years of service as the minimum for a prisoner serving life imprisonment to qualify for parole.

In Norway, the longest prison sentence that can be imposed on a prisoner is 21 years. There is, however, an exemption for genocide, crimes against humanity, and war crimes, which attract a maximum of 30 years.

In Asia, Malaysia and Pakistan have repealed their laws to cap life imprisonment to a maximum of 40 years and 25 years, respectively.

“This emerging consensus of the civilised world community, while not controlling our outcome, provides respected and significant confirmation for our own conclusion that life imprisonment is cruel and degrading treatment owing to its indefiniteness,” the Court of Appeal judges observed.

They ruled that Nyamari should serve 30 years owing to the severity of what he did on July 10, 2011.

The DPP did not oppose.

In the meantime, the Supreme Court also waded into the debate.

In two separate cases revolving Evans Nyamari  Ayako and Julius Kitsao Manyeso, Deputy Chief Justice Philomena Mwilu and Justices Mohamed Ibrahim (deceased), Smokin Wanjala, Njoki Ndung’u, and Isaac Lenaola observed that although it directed that their judgment in Francis Muruatetu’s case be placed before Parliament to set the parameters of what constitutes life imprisonment.

However, despite the recommendation being made on December 14, 2017, the apex court observed that MPs and Senators have been quiet while the same gathers dust and hosts spiders.