Death Penalty in Kenya: Why courts still issue sentences despite no executions since 1987

A person behind bars. (Courtesy/GettyImages) When Nelson Bukachi found himself behind bars at Industrial Area Prison's Block J, the grim reality of incarceration shook him to the core. His interactions with fellow inmates-especially those on death row-left him both uneasy and deeply reflective. "The time I spent at the correctional facility was life-changing, particularly my encounters with those awaiting execution," he recalls. "I was jailed for drug trafficking, a crime considered relatively minor inside prison walls. When you interact with death row inmates, you see a different picture. One thing that stood out was the sheer hopelessness. Many have given up on life. They don't care about anything, are indifferent, withdrawn, even hostile. For them, existence has lost all meaning as they know they are in for life," he says. He describes the psychological toll of prison life. "The environment poisons your mind. You meet people convicted of the most heinous crimes, and if you give in to the pressure, they connect you to networks of ex-convicts still involved in crime. The real danger lies in the mindset-a person who has nothing to lose is a threat, not just to himself but to society at large," Bukachi observes. For Bukachi, the solution lies in systemic change. "We need to reform both the prison system and how we rehabilitate inmates. Otherwise, we are breeding more criminals." "There is no need for the death penalty," he points out. The dilemma of death penalty in Kenya The death penalty is one of the most inhumane forms of punishment in our present times. It violates numerous human rights and fundamental freedoms for those sentenced to death. At the apex, it violates the right to life as guaranteed in our Constitution and regional and international treaties Kenya is a party to. Kenya has not carried out an execution since 1987, when Hezekiah Ochuka and Pancras Oteyo Okumu were put to death for their role in the failed 1982 coup against President Daniel arap Moi. However, death sentences continue to be handed down. "In 2023, 131 people were sentenced to death. Currently there are 158 prisoners on death row with 155 being men and three women, all spread across different maximum security prisons in the country," says Pete Ouko, the Executive Director at Youth Safety Awareness Initiative, popularly known as Crime Si Poa (CSP). Death sentenced prisoners are held in approximately 27 prisons, with most held in Shimo La Tewa, Embu, Nyeri, Naivasha, Kisumu, Kibos and Kamiti. The number of death sentences increased significantly from 79 in 2022 to 131 in 2023, Ouko says. "Section 26 of the 2010 Constitution provides that a person shall not be deprived of life intentionally but allows for the four exceptions authorised by the law. The Penal Code of 2009 prescribes the death penalty for various offences including treason murder and aggravated robbery. At least 41 provisions in Kenyan law allow for the application of the death penalty," Ouko tells The Nairobian. In 2017 the Supreme Court of Kenya ruled that the mandatory death penalty was unconstitutional declaring that Section 2 of the penalty code violated judicial discretion (Muruatetu vs Republic of Kenya). Harsh reality of Kenya's death row prisoners Prisoners on death row endure overcrowding, limited access to basic services, and severe psychological distress. Water shortages hinder hygiene, contributing to disease outbreaks, while access to healthcare is minimal. Many inmates sleep in single-file rows on the floor due to a lack of space and bedding. A study by the Kenya National Commission on Human Rights found that the conditions in which prisoners on death row lived had a psychological impact on them. "They live isolated from other prisoners, recreational activities being little or not allowed to them depending on the prisons and they suffer from discrimination due to their death row prisoner status. Some prisoners in Kibos Maximum Prison in Western Kenya are only allowed out of their cells to eat. In addition, they are isolated from their families who often abandon them once the death sentence is pronounced," says Ouko, who once served at Kamiti Maximum Prison. "We accommodate these people for the purpose of rehabilitating them to become better persons. Again we have them in custody for their own safety and also for the safety of the community. We do not promote the death penalty as it would be going against our wish and mandate," says Kennedy Motoki Senior Superintendent (SSP) Kenya Prisons Service. Motoki points out that it is also expensive in terms of managing them emotionally and in terms of resources. "A person who is awaiting execution cannot be placed in any programme because you can imagine how hard it is for anyone to connect with someone who society wishes to be executed. Remember we intend to have this person now in our custody with the hope that at some point, when we release them back to community for purposes of continuity, they can be self-reliant," he says. The prison population is segmented. There are who are serving short sentences and those serving long sentences, including life in prison. Then there those on death row. Motoki states that one must also remember these inmates are in government budget. "We feed them, we take them through the best medical services as much as we can," he points out. A summary report for the Universal Periodic Review (UPR) of Kenya by Abolition Now, a lobbying group which advocates for the removal of the death penalty in judicial systems, provides updated information and date on the use of the death penalty in Kenya, since its last review by the UPR working group in 2020 (3rd cycle), for the country's upcoming review in May 2025 (4th cycle). Cape Verde was the first African country in Africa to abolish the death penalty, with Zimbambwe being the latest to follow suit in December last year. Already 28 African countries in Africa have abolished the death penalty. Kenya is a party to The International Covenant on Civil and Political Rights (ICCPR) which restricts the use of death penalty but national laws conflict with these international obligations. A number of groups have been lobbying for the abolishment of death sentence, from the top policy making level, to conducting awareness on the issue within communities. ECPM (Together against the death penalty) has been campaigning since 2000 for the universal abolition of the death penalty through advocacy, awareness-raising activities and by uniting international abolitionist forces. The organisation together with like-minded groups and individuals have been lobbying for the abolishment under the Abolish Now banner. "The state has not ratified The Optional Protocol to the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (OPCAT) nor the Second Optional Protocol on the International Covenant on Civil and Political Rights (OP2). Since 2007, Kenya has consistently abstained from voting in the UN General Assembly resolution calling for the universal moratorium on the use of death penalty," says Sylvia Morwabe, Director Operations and General Counsel at CSP. Morwabe says that during its last UPR cycle (2020) Kenya supported 10 out of 25 recommendations related to the death penalty mainly dealing with the ratification of the Second Optional Protocol to the ICCPR or OP2, the computation of death sentences and the implementation of further steps towards abolition. "One of the recommendations is that Kenya should also align national laws with its obligation under ICCPR. Another recommendation is that Kenya should reconsider its position on the UN General Assembly resolution calling for a universal moratorium on the use of death penalty with a view of supporting this resolution in future votes," she adds The law provides that anyone sentenced to death has the right to appeal their sentence and that the President must approve such sentence. It is only the President who has the power to grant pardons. In July 2023 President William Ruto commuted the sentences of all those sentenced to death as of November 2022 to life in prison. Speaking during The Death Penalty Conference recently held in Nairobi, Romain Boyer, the Political counsellor and Head of communication and press office at the Nairobi French Embassy, said the death penalty is a flagrant violation of the right to life and is often accompanied by practices that are tantamount to torture, such as long waits on death row or the execution methods themselves. "The death penalty is often accompanied by inhumane conditions-years spent in isolation, execution methods that amount to torture. It perpetuates cycles of violence and vengeance rather than justice and rehabilitation," Boyer argued. Studies show no conclusive evidence that capital punishment deters crime. In fact, countries that have abolished it tend to have lower crime rates. "Today more than ever, the fight for universal abolition is a fundamental fight. This fight will be at the heart of the 9th World Congress against the Death Penalty, which France will host from June 30 to July 3 2026. We will pursue one goal at this Congress: getting more states to abolish the death penalty," he added. Rethinking justice of Kenya's death row inmates Dr Molly Muiga, a clinical psychologist and official with the Kenya Psychosocial Association, urges a shift in perspective. "We often think of the victims, but we rarely consider the human rights of offenders or the circumstances that led them to crime." She stresses the psychological toll on families of death row inmates. "Their loved ones live with daily uncertainty, knowing there's no hope. As a society, we must rethink how we correct those who break the law. True rehabilitation offers offenders a chance to reform and contribute positively to their communities." As Kenya grapples with its position on the death penalty, the debate continues. Is it time for the nation to fully embrace abolition, or will capital punishment remain a relic of the past, haunting those who await its enforcement?

Death Penalty in Kenya: Why courts still issue sentences despite no executions since 1987

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