Abolish outdated death penalty to align with constitutional right to life

The death penalty is a form of punishment that can only occur after conviction for serious crimes such as treason, murder or robbery with violence. [iStockphoto]

On October 10, 2023, the world commemorated the 21st World Day Against the Death Penalty.

Through the commemoration, the world is called upon to abolish the death penalty based on the conviction that it violates human rights, especially the right to life and freedom from torture, cruel treatment, and punishment.

The right to life is guaranteed by Article 26 of the Constitution. However, it provides that a person shall not be intentionally deprived of life except as permitted by this Constitution or other written laws. The Constitution contemplates situations where legal sanctions may lawfully limit life. However, it is unclear whether condemnation qualifies.

In Kenya, the death penalty is a form of punishment that can only occur after conviction for serious crimes such as treason, murder or robbery with violence. Navy Officer Hezekiah Ochuka, who led the 1982 coup against the Moi Regime, was the last person to be executed. We have been a de facto (in practice) abolitionist state for 36 years.

On the ground, death sentences are present in our statute books and can be activated at the whim of our heads of state. Judges and magistrates must also render the death penalty when appropriate.

In 2009, 2016 and 2022, Presidents Kibaki, Kenyatta and Ruto commuted persons on death row to a substituted life sentence, thereby giving thousands of condemned people a lifeline. Our system recognises, therefore, that the death penalty may be ineffective and violates human rights. After the commutations, Kenya had 99 men and two women on death row as of October 9, 2023.

Physical or psychological torture is prohibited by Articles 25 and 29 of the Constitution. Freedom from torture is also one of the rights that cannot be restricted in any way.

The death penalty is increasingly viewed as torturous around the world due to its mental anguish and methods used to induce death such as hanging, lethal injections, and electric shock. According to some theories, those on deathn row experience social stigma, dehumanisation, and isolation.

Through strategic litigation, Kenya has elucidated the death penalty issue and developed useful and progressive jurisprudence concerning it. An example is the Muruatetu case from 2017 which determined that the mandatory nature of the death penalty was unconstitutional.

Before, judges were obligated to sentence someone to death if found guilty of murder, treason or robbery with violence, no matter the circumstances or mitigation pleaded.

Since then, a wide range of discretion has been granted to the Judiciary to decide sentences according to the circumstances. We have seen cases where women accused of murder have also been acquitted or sentenced very leniently when the court was convinced that the accused were victims of systemic domestic abuse by their spouses.

Criminal justice is viewed by society as a means of retribution, punishing the perpetrator for the sake of the victim. As a society, we are obsessed with punishment and revenge, creating a rigid system that does not seek to heal and improve society as a whole.

We should support the Minority Leader in Parliament, Opiyo Wandayi's Bill seeking to replace the death penalty with a life sentence and create a community-centred holistic criminal justice system. Reconciliation and rehabilitation should be the aim of the system instead of condemnation.

According to research, longer or more severe sentences do not necessarily deter crime. In fact, there is no correlation between the death penalty and crime levels.

Additionally, our criminal justice system is not infallible, meaning that wrongful convictions can occur, so people should be kept alive in case of a review or appeal.