With over 35 years without an execution, new research sheds light on the background and profiles of Kenya’s death row population, providing important insight into prisoners’ pathways to, and motivation for, offending as well as their experiences of the justice process and of death row.
A new study commissioned by The Death Penalty Project, London, in partnership with the Kenya National Commission on Human Rights, Nairobi, reveals that rather than ‘the worst of the worst’, Kenya’s death row is populated by some of the most vulnerable and disadvantaged members of society.
The research, ‘Living With a Death Sentence in Kenya: Prisoners’ Experiences of Crime, Punishment and Death Row’ led by Prof. Carolyn Hoyle at the University of Oxford, examines the backgrounds and profiles of those sentenced to death, their reasons for offending, as well as exploring their experiences of the criminal justice process and incarceration. In most countries around the world that retain the death penalty in law and in practice, there is no empirical evidence about the types of people that are sentenced to death. This report therefore provides information on a subject we know little about and which is likely to inform our understanding of death row prisoners in many countries across the African continent and beyond.
Kenya is among the minority of countries that continue to retain the death penalty in law, yet it has not carried out an execution since 1987. In 2017, the country’s Supreme Court declared the mandatory death penalty unconstitutional and since the introduction of discretionary sentencing, the number of death sentences imposed has reduced. However, to date, approximately 600 people remain on death row.
Through nuanced questioning of a large, representative sample of 671 prisoners, including a quarter whose sentences have been commuted to life imprisonment, across 12 prisons in Kenya, this new research is representative of all death sentenced prisoners.
The study reveals that Kenya’s death row population is overwhelmingly disadvantaged, vulnerable, and poorly educated, with the majority being first time offenders.
- Only 11% of prisoners had a prior conviction
- The majority were poorly educated: more than 1 in 10 had never been in formal education
- Their average wage was below the Kenyan minimum wage and more than 1/3 were in debt
- 86% of prisoners were responsible for supporting dependents
Deterrence theorists argue that for an offender to be deterred, they need to know the likely punishment for their offence, consider the risks of detection and receiving that punishment to be high, and believe that the benefits of committing the crime outweigh the risks of such punishment. The report makes clear that prisoners had little knowledge about the law and the death penalty and were unaware that committing such offences would result in a death sentence. As such, they did not meet the preconditions for being deterred from committing capital crimes.
- 95% of those that committed robbery and 86% of those that committed murder did not know their offences were punishable by death
- 72% of those that committed robbery did so were motivated by financial gain
- The majority were not worried about being sentenced to death
The study finds that the majority of Kenyan prisoners did not receive due process of law.
- 53% were not given the right to communicate with a lawyer pre-trial
- During interrogation almost half were subject to either psychological or physical abuse
- At trial, 27% were denied an interpreter; 24% were denied legal assistance; 43% did not understand what was happening at their trial
The research also explored individuals’ experiences of death row, which has an overall negative impact on their health, both physical and psychological, as well as inherently negative effects on their relationships with loved ones.
- Around 1/3 did not have sufficient nourishing food or adequate access to medical care
- Around 2/3 of prisoners said their physical and mental health had suffered since they had been incarcerated
- 2/3 said that their relationships with family deteriorated, with 1 in 10 having no visitors in prison
However, the research also revealed that prisoners were able to take advantage of opportunities for work and recreation and had some access to rehabilitation (56% worked or were able to practice ‘hobbies’; 73% received education; 84% received rehabilitation), as well as fostering positive relationships between prison officers and other prisoners. This suggests that Kenya prison service takes a positive approach to the psychological welfare of prisoners, despite limited resources and severe overcrowding.
The full report is available to download here.
Parvais Jabbar, Co-Executive Director of The Death Penalty Project said:
There are approximately 600 people on death row in Kenya living in poor conditions, subject to overcrowding and at risk of dying in prison. It is clear that Kenya’s death row is overwhelmingly populated by the poor and disadvantaged, who have not benefitted from fair trial processes, and whose physical and mental health suffers greatly from the conditions of death row. The experiences revealed by our report allow us to better understand the lives fractured by trauma and lack of certitude within a system that continually exposes prisoners on death row to the threat of execution. Such a system has no place in modern Kenyan society. In 2017, Kenya made a significant step towards abolition, when the Supreme Court ruled the mandatory death penalty to be unconstitutional, but has yet to take the necessary further steps to abolish this degrading and cruel punishment in its entirety. Our latest report aims to support policymakers hoping to move in this direction.
Professor Carolyn Hoyle, author of the reports and Director of the Oxford Death Penalty Research Unit said:
Our report undermines one of the commonest arguments retentionists use, that the death penalty, even when there are no executions, deters would-be offenders from committing serious crime. It does so by showing that an overwhelming majority of prisoners on death row had no idea they might be given a death sentence before committing their offence and so could not have been deterred. Our previous research showed that support for capital punishment here is relatively weak. Without public support and evidence that the death penalty reduces the risk of serious crimes, the key rationales for retention fall away.
Notes to editors
In 2022, The Death Penalty Project in partnership with the Kenya National Commission on Human Rights, commissioned Prof. Carolyn Hoyle, Director of The Death Penalty Research Unit, at the University of Oxford, and Lucrezia Rizzelli, doctoral candidate at the University of Oxford Centre for Criminology, to undertake research to provide extensive insight into the profiles and backgrounds of those on death row in Kenya today.
The research reveals that far from ‘the worst of the worst’, those on death row in Kenya are poorly educated, were in low-level and precarious employment, as well as having the responsibility to provide financially for family and dependents. By and large, Kenya’s death row is populated by the disadvantaged and the vulnerable. This research aims to facilitate a constructive conversation on the future of capital punishment in the country and encourage leaders to take the necessary steps to remove capital punishment from Kenya’s statute books.
Authored by Prof. Carolyn Hoyle and Lucrezia Rizzelli.
The research was made possible by funds awarded to The Death Penalty Project by the European Union and the United Kingdom Foreign, Commonwealth and Development Office.
The Death Penalty Project
The Death Penalty Project is a legal action NGO with special consultative status before the United Nations Economic and Social Council. The organisation provides free representation to people facing the death penalty worldwide, with a focus on the Commonwealth. It uses the law to protect prisoners facing execution and promote fair criminal justice systems, where the rights of all people are respected.
For interview requests, quotes or more information please contact Isobelle Degale, Communications Officer [email protected]
The Kenya National Commission on Human Rights is an independent National human rights institution created by Article 59 of the Constitution of Kenya and established through the KNCHR At of Parliament (The Kenya National Commission on Human Rights Act 2011). It is the state’s lead agency in the promotion and protection of human rights. The operations of the KNCHR are guided by the United Nations- approved Paris Principles on the establishment and functioning of independent national human rights institutions. KNCHR has been accredited by the International Coordinating Committee of National Human Rights Institutions (ICC) and is a member of the Network of African National Human Rights Institutions, the ICC’s regional grouping for Africa.
For interview requests, quotes or more information please contact Samson Omondi, Senior Human Rights Officer at KNCHR [email protected] or Dominic Kabiru, Head of Public Affairs & Communication [email protected].
Carolyn Hoyle is Professor of Criminology and Director of the Death Penalty Research Unit at the University of Oxford. For almost thirty years, she has taught and researched at the University of Oxford, with a particular focus on the death penalty. She is co-author, with Professor Roger Hood, of The Death Penalty: A Worldwide Perspective, as well as other books, reports and academic journals on capital punishment.
For more information or interview please contact Carolyn Hoyle [email protected]
The death penalty in Kenya
The last execution in Kenya took place in July 1987. Having not carried out an execution for 36 years, Kenya is considered ‘abolitionist de facto’. In 2017, the country went a step further and abolished the mandatory death penalty, but death sentences continue to be handed down. There are four crimes currently punishable by death: treason, murder, robbery with violence and attempted robbery with violence. There are approximately 600 people on death row in Kenya today.
The death penalty around the world
Over the last four decades the number of countries to have abolished the death penalty has continued to increase, and those that regularly execute find themselves in a small minority. Today, 115 countries have abolished the death penalty for all crimes, 8 for ordinary crimes, 29 are considered retentionist, although many meet the UN definition of abolitionist de facto and have not carried out an execution for over 10 years.
In 2021, 2,052 death sentences were recorded and at least 579 executions carried out across 18 countries. However, these figures do not account for the thousands of executions carried out in China, North Korea and Vietnam, where death penalty data is a state secret.
In all, 26 member countries of the 54 African Union states have abolished the death penalty, most recently, the Central African Republic, Equatorial Guinea and Zambia in 2022. Only 11 countries are actively retentionist, with 17 countries, including Kenya, being ‘abolitionist de facto’.