Ensure fairness during trial of GBV victims accused of murder

Kenya is among African countries that still retain the death penalty. It is categorised as abolitionists de facto, having not carried out executions in over 30 years. The last person was executed in 1987 in the country. Courts continue to sentence persons charged with capital offenses to death. In 2022, while Kenya granted 12 commutations and five exonerations, 79 persons were sentenced to death. At the end of 2022, 656 persons were under the death penalty. Currently, 22 women are on death row. Kenya has not ratified the Second Optional Protocol to the International Covenant on Civil and Political Rights, which aims to abolish the death penalty and recognises that the abolition of the death penalty contributes to the enhancement of human dignity and the progressive development of human rights. Until the situation changes, the ripple effects of the death penalty, including social exclusion and victimisation, family disintegration and suffering, health complications, psychological torture and emotional discomfort and deficiencies in the criminal justice system shall continue to be felt. Focusing on deficiencies in the criminal justice system, studies indicate that trials against women facing the death penalty are often tainted with "irrelevant and prejudicial evidence", including their sexuality, appearance, and fitness. This obscures the complexity of their lives and the experiences that led to their arrest and prosecution. One such complexity is gender-based violence (GBV). The United Nations defines GBV as 'Any act of gender-based violence that results in, or is likely to result in, physical, sexual, or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life." It is unfortunate to note that defence lawyers either fail to present evidence of GBV in women's capital trials or fail to fully explain the nature of their clients' victimisation and the harm they have suffered as a result. On the other hand, prosecutors grasp every opportunity to rely on gendered tropes to discredit women's accounts of violence such as childhood sexual abuse, rape, and intimate partner violence. Failure to investigate and present the traumatic experiences, including GBV, that women facing the death sentence have undergone is prejudicial to their right to a fair trial as it directly speaks to their culpability. GBV can result in emotional and psychological distress, including post-traumatic stress depression, anger, and anxiety, all which impact behaviour. Case studies by the Cornell Centre on the Death Penalty Worldwide indicate that women in Uganda, Malawi and Nigeria have been sentenced to death for crimes that are intrinsically linked to their victimisation at the hands of their abusers. These women are not seen as survivors or victims of GBV, but as perpetrators of crimes and whose punishment is the death sentence. In Kenya, the case of Truphena Ndonga Aswani stands out. The accused person, in self-defence, hacked the deceased several times using a machete. The probation report and mitigation in court indicated she was a victim of domestic violence and nearly died from the frequent beatings administered to her. Noting the effects of prolonged GBV on the accused, the court issued a non-custodial sentence to enable the accused access counselling to recover from her traumatic experiences. This decision greatly reinforces the re-sentencing guidelines issue in Francis Muruatetu and Another-vs-Republic where the court held that, among others, commission of an offence in response to GBV is a mitigating factor in murder cases. Since the promulgation of the Constitution, Kenya has made remarkable progress towards promoting protecting and respecting human rights and fundamental freedoms. The de jure abolition of the death penalty would not only speak to such progress but would also demonstrate the unremitting commitment to safeguard the right to life and freedom from torture. Ms Bosibori is an advocate of the High Court of Kenya

Ensure fairness during trial of GBV victims accused of murder

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