Why violent robbery suspects can still hang

By Pravin Bowry

Kenya: Under the Kenyan Penal Code there are five offences which carry mandatory death penalty and these are the offences of murder, treason , robbery with violence, attempted robbery, and administering an oath to commit a capital offence.

But lo and behold!  Since 1987 no one convicted of any of these offences has been hanged as by law required and to add salt to the legal injury, former President Mwai Kibaki in 2009 commuted en masse all death penalty sentences to life imprisonment.

This was done under his constitutional mandate of what is termed as prerogative of mercy.

Not consistent

All courts having jurisdiction to pass the death sentence had been doing their duty for over a century when in the year 2008, in a controversial decision, three Court of Appeal Judges held that the mandatory death sentence is inconsistent with the provisions of the Constitution of Kenya to the extent that it is the only sentence for the offence of murder.

As a result of the decision in   Godfrey Ngotho Mutiso vs. Republic [2010] eKLR, courts all over the country have been giving lesser sentences to those convicted of capital offences.

And two weeks ago, on the 18th of October, 2013, in an extremely important decision, the legal significance of which Kenyans have as yet failed to appreciate and grapple with,  the Court of Appeal turned the tables by holding that all courts in capital cases have by law one and only  one option – that of hanging the culprits. 

The five-judge Bench Court of Appeal decision in Joseph Njuguna Mwaura & 2 Others vs. R Criminal Appeal No. 5 of 2008 states that the mandatory death sentence shall continue to be imposed in accordance with the law until such a time that it is removed from the statute books.

Penal code

The appellants had argued that the mandatory death sentence prescribed under section 296 (2) of the Penal Code for the offence of robbery with violence has since been outlawed by the provisions of the new Constitution which provides for the protection of life and that the sentence amounts to degrading and inhuman treatment also prohibited by the Constitution.

In addition, the appellants had submitted that the mandatory death sentence was outlawed in the country under a number of international instruments such as the Convention on Civil and Political Rights and the Universal Declaration on Human Rights which now forms part of Kenyan law.

The appellate Court was however of the view that the Constitution provides for situations in which the right to life may be curtailed and therefore the right is not absolute.

Further, the court held that international instruments are only applicable in so far as they are not inconsistent with the Constitution and cannot supersede the provisions of the same.

Cruel, inhuman and degrading punishment was defined by the court as that which is done for sadistic pleasure, in order to cause extreme physical or mental pain, and that is disproportionate to the crime, so that it causes moral outrage within the community.

According to the Court, the mandatory sentence did not fit within this definition.

The court stated that the sentence was endorsed by the people in a referendum and so is not shocking to the moral sense of the community. The deprivation of life as a consequence of the sentence as a result of what is considered as the most serious crime was also seen as fit and proportionate punishment.

There are now two contradictory Court of Appeal decisions. Is a five-judge Bench decision of the Court of Appeal more binding than that of a three-judge Bench?

Different dimensions

The repercussions and legal consequences of the decision are mind-boggling and hundreds of specific situations are likely to emerge, each having its own dimensions.

Academics of the issues aside - many treatises can and may be written — the pertinent contentious issues can be divided into what has so far transpired, what is the present, and, of course, the future?

These issues can be enumerated thus:

i) What will happen to those convicted since 1987 and not hanged and those who had their sentences commuted impliedly or through presidential orders: will it not be discriminatory not to hang those who have been sentenced to die? And rider to the above is that in Kenya no one knows what life imprisonment entails: is it life or can the prisoner be released on parole?

ii) Can the Commissioner of prisons refuse to obey court orders by not hanging those sentenced to hang?

iii) Where a referendum tacitly approved the death penalty, can Parliament legally take a contrary view if it so deems fit?

iv) Do we now need to amend the Constitution in order to deal with whether the death penalty should or should not be abolished?

Appeal to the Supreme Court of the land can solve issues, but whether it does and can have jurisdiction to deal with sentencing matters is a moot point.

Perhaps the Supreme Court can move on the basis of interpretation or application of the Constitution or on the concept of general public importance and give an advisory opinion on the matter.

In days to come, the sentence of death penalty will be fighting, yes, for its life!

The writer is a lawyer.

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