Kenya yet to expressly abolish death sentence

By Alex Kiprotich

When High Court judge Mohammed Warsame sentenced to death police inspector Dickson Munene and his friend Alex Chepkonga for the murder of James Ng’ang’a, the defence faulted the ruling. It cited a recent precedent where the Court of Appeal upheld a death sentence saying it is not the only punishment for murder convicts.

And though the country retains the mandatory death penalty for murder, armed robbery and treason, the sentence re-ignited debate about whether death sentence should be abolished.

Alex Chepkonga (left) and Dickson Munene at the Milimani law courts waiting for judgement of a case, which they had been charged with killing James Ng’ang’a in 2009. They were found guilty and were sentenced to death. Photo: File/Standard

There have been no executions since 1987 when Hezekiah Ochuka and Pancras Oteyo Okumu, both accused of plotting the August 1, 1982 coup, were given capital sentences.

Despite the courts handing out death sentences, the country seems to have adopted a policy or established a de facto abolition.

In August 2009, President Kibaki commuted the sentences of all convicts on death row, which affected over 4,000 prisoners. This was seen as one of the largest commutation of death sentences in the world.

But even with the indications that the leaders are jittery Kenya, which is party to the International Convention on Civil and Political Rights (ICCPR) since 1972, has neither signed nor ratified the Second Optional Protocol to the ICCPR aiming at the abolition of the death penalty (1989).

According to Nolasco Kubasu, a philosopher and conflict management specialist, death sentence is barbaric and should be abolished.

Gross injustice

Kubasu argues that courts should hand sentences to convicts that are correctional.

"For the State to take the high moral ground, they should correct wrongs by passing life sentences where it deems fit and not killing," he says.

Kubasu says by taking away the life of a convict, the State destroys another life, creating a cycle of bitterness and not remorse.

"The State will not be any different from the person purporting to punish by killing, so death penalty is immoral and just a sanitised form of vengeance, which has no place in the modern world," he said.

He says witnesses, prosecutors, and jurors can all make mistakes and when this is coupled with flaws in the system, it is inevitable that innocent people would be sent to the gallows.

"Where capital punishment is used such mistakes cannot be put right," he says.

Moi High School, Kabarak, chaplain, Reverend Paul Ombati, looks at the death penalty in a theological perspective.

He argues that capital punishment should be viewed more as a prerogative of human government than as a mandate.

"Capital punishment is legitimate, but should be operative only if gross injustices have been committed," he says.

He, however, says the courts should be careful not to commit another form of injustice in the name of meting out justice.

"If capital punishment is part of a reasonably just system and is used in cases of premeditated murder with no mitigating factors and certain proof, it would probably enhance the value of life and the fabric of justice in a society. But if it is invoked unjustly then there is no need to have it."

Wrong person

Evans Kipchenger, a criminal lawyer, says death penalty goes against the spirit of Article 3 of the Universal Declaration of Human Rights, which affirms the right to life for everyone.

He says the penalty is punitive and erodes the gains attained in respect to preservation of life.

"It is unfortunate that the new Constitution did not outlaw death penalty, even as we laud the President for commuting sentences of death to life imprisonment. But as long as the same has not been repealed, there is little to celebrate because the Constitution is supreme," he says.

Kipchenger says it is fallacy to argue that death penalty deters crime. What deters is the likelihood of arrest and prosecution, he argues.

"It is the likelihood of being caught and punished. The death penalty is a harsh punishment, but it is not harsh on crime," he says.

But Benson Kimani supports the death penalty arguing that if someone takes the life of a fellow human being, they give up their human rights, including the right to life.

"The punishment should fit the crime, thus if you have killed someone, you should be killed too," says the Kimani.

He says with a just and highly professional Judiciary, the chance of executing the wrong person is almost zero. Even if it were to happen the very small chance of executing the wrong person is balanced by the benefits to society of putting off other murderers.

"The message would be very clear and the society would be safer," he says.

In May, Justice Otieno, Justice Emmanue O’Kubasu and Justice Philip Waki of the Court of Appeal quashed the conviction of Elizabeth Gitiri Gachanja, wife of former Lands Commissioner Wilson Gachanja.

She had been sentenced to death in March 2003, alongside seven others for the murder of businessman Lawrence Magondu in February 2000.