Capital Punishment in Kenya
Persuading nations that still uphold capital punishment in a world of adburdly complex legal systems is not as easy as it used to be for many a Human Right organizations, including those working towards its abolishment in Kenya. Flush with facts and eager to annul the antediluvian act, capital punishment in Kenya has been a subject of debate in the legal and human rights halls, both haggling over its terms and the unsaid consequences of its absence. Thanks to the rising international pressure to abolish capital punishment globally, Kenya is on the verge of making a last ditch effort to conclude the practise. But old habit die hard! While most people associate capital punishment in Kenya with the advent of colonial administration, and they are right to suppose so, the practise dates back to pre-colonial Kenya. Whilst most communities in Kenya, then and now, possess in a marked degree a savage fear of the presence of death, hastening to escape from its presence, punishment by death in the last was carried out – the hyena left to performs the office of undertaker to the general multitude. Death penalty was used as a form of punishment in pre-colonial Kenya and reserved for the most shameful and reprehensible offences, like unjust killing or stealing.
Kenya’s gained independence in 1963 in December of that year. The country’s complex legal system, an offshoot of the British Empire, was mended to to one focused on local issues. It was the British Empire, with its influence in East Africa from the turn of the 20th century, that brought in the official legislation to approve capital punishment in Kenya as a law. The notion of punishment in colonial Africa was associated with “good governance, justice, and civilization”. Violence and excessive punishment meted by colonial regimes were tools often used to control the operation of the state. As the country wend into a sovereign state, though, the supremacy of the British Empire continued to influence its course. Chief among them: getting the right governance systems. The stronger-than-expected laws of the British were retained almost word by word. Tighter, efficient and forward looking fiscal and monetary policies were also readapted. Then and now, under the Kenyan law, offences of murder, treason and robbery with violence, including attempted robbery with violence, carry a mandatory capital punishment or the death sentence, under section 204, 40(3), 296(2) and 297(2) of the Penal Code, CAP 63 Laws of Kenya. It’s a rather complex system that sets on thinking that whereas the Constitution of Kenya protects the right to life, Section 71 (1) takes it away to the effect that “no person shall be deprived of his life intentionally save in execution of the sentence of a court in respect of a criminal fault under the constitution of Kenya of which he has been convicted.
Whilst the death penalty applied in the United Kingdom until 1965, when the Abolition of Death Penalty Act suspended capital punishment for a period of 5 years, it remained in effect in Kenya. In 1969, the House of Commons voted by 343 to 185 to reaffirm its decision that capital punishment for murder should be permanently abolished. By the time of abolition of the death penalty in Britain, most of her colonies, including Kenya, had attained independence. That meant that it was the choice of respective independent colonies to either follow the trend of Britain to abolish the death penalty or retain it. Kenya chose to retain the death penalty. The application of the death penalty in colonial Kenya was heightened during the struggle for independence. Sir Evelyn Baring, Governor-General of Kenya, in 1953, imposed capital punishment in Kenya for persons who administered the Mau Mau oath. Following Kenya’s independence, reports indicate that from 1963 up until 1987, almost 280 persons out of 3,584 people sentenced to death had been executed. 135 prisoners had benefited from the presidential prerogative of mercy and their death sentences commuted to life imprisonment. “It is believed that the last execution was carried out in 1987 against John Ochuka, who was convicted for the offence of treason.” – KNHRC.
Changes in Capital Punishment Law in Kenya
The debates preceding the adoption of the Bomas Draft Constitution in March 2004 grappled with the questions put to capital punishment in Kenya and its abolition. Undeterred by an initial inclusion of express language in the draft constitution outlawing it, delegates at the National Constitutional Conference eventually voted in favour of retaining capital punishment, principally on the basis that people who committed heinous crimes should be punished as harshly as possible. Even with that, the Bomas Draft recognized that every person has the right to life, but was silent on the death penalty and did not outline the settings under which the right to life may be deprived. Adopting a different approach from the Bomas draft, the Wako Draft recognised the right to life but gave Parliament the power to legislate the extent to which a person may enjoy that right. By implication, capital punishment in Kenya still was extant in the then proposed Draft Constitution that was rejected during the November 2005 referendum. “During the 61st Session of the UN Commission on Human Rights in 2005, Kenya was one among the countries that abstained from voting for a UN Draft Resolution calling for abolition of the death penalty. Kenya also refused to vote on another resolution condemning arbitrary executions and impunity”. At the same time, it is significant that Kenya has still not signed the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR) aiming at abolition of the death penalty. In 2003, then Vice President, Moody Awori, when releasing more than 20 prisoners convicted for capital offences, stated his intent to introduce a Bill in Parliament to abolish it.