As Africa rapidly turns away from capital punishment, is it time for Kenya to abolish this relic of a colonial past?

On Monday 13th June 2022, The Death Penalty Project’s latest op-ed was published in Kenya’s The Star.  Written by our co-executive director Parvais Jabbar, Professor Carolyn Hoyle of the University of Oxford, and Samson Omondi Assistant Director at Kenya National Commission on Human Rights (KNCHR).

In Summary

• A common argument used by retentionist governments is that the public favours retention.
• Our research in Kenya and elsewhere has shown that far from the strong public support assumed by retentionist governments, there is, in fact, little appetite for the death penalty.

STARTS

In July 1987, Hezekiah Ochuka and Pancras Oteyo Okumu were hanged at Kamiti Maximum Security Prison in Nairobi for their role in the 1982 coup d’état attempting to overthrow President Daniel arap Moi. Their deaths were the last to be conducted by the State and almost 35 years have passed since the gallows shut.

Kenya is now abolitionist de facto, a state that has not carried out an execution for more than 10 years. Yet death sentences continue to be imposed, with at least 600 individuals currently on death row after thousands were commuted to life imprisonment over the last 15 years.

Over the past two decades there have been calls for abolition from politicians; none have been successful despite government frequently stating its commitment to reviewing capital punishment.

Elsewhere in Africa the pace of change has been rapid. In the last month alone two African states, Zambia and Central African Republic, have announced intentions to abolish. In Zimbabwe too, the President has consistently made clear his wish for capital punishment to come to an end describing it as a flagrant violation of the right to life and human dignity.

If confirmed, these countries will follow Sierra Leone, which abolished in 2021, and Chad in 2020. Only 27 per cent of countries in the African Union are now considered retentionist, compared to 61 per cent in 1996, and only four countries—Botswana, Egypt, South Sudan and Somalia—carried out executions in 2021. Today, only a quarter of countries worldwide are considered retentionist.

A common argument used by retentionist governments is that the public favours retention. Kenyan leaders too have often voiced concern that the public is not ready for abolition and stated such change can only be obtained once a public consensus has been reached. Yet, to date, evidence guiding this penal policy has been weak.

To investigate whether Kenyans do indeed strongly favour retention, we undertook a nuanced survey of the public and interviewed opinion formers (those considered influential in shaping the nation’s views) to test the government’s claim of a strong appetite for capital punishment. The report and findings will be launched in Nairobi on June 14.

While in the abstract, 51 per cent of people supported the death penalty, only 32 per cent were ‘strongly’ in favour. This tiny majority was neither overwhelmingly strong, nor sustained. And when provided with examples of realistic cases or mitigating factors, support declined dramatically to only 25 per cent. In contrast, Kenya’s opinion formers were resolutely against the death penalty, with 90 per cent favouring abolition.

Kenyans have little trust in the criminal justice system in preventing miscarriages of justice: 61 per cent of the public believed innocent people had been sentenced to death and almost all opinion formers believed that wrongful convictions occur regularly. These concerns were key rationales for supporting abolition.

Notwithstanding initial views, both public and opinion formers were open to abolition. More than half (59 per cent) of the public and nearly all opinion formers stated that they would accept a government policy to abolish.

Across the Commonwealth, we see countries with no cultural history of capital punishment before colonial rule retain this punishment—though most have not carried out executions for years, even decades, suggesting it has all but died out in practice. Habit and inertia may be the main reason Kenya retains the death penalty, rather than any coherent policy consideration around deterrence and public opinion.

Our research in Kenya and elsewhere has shown that far from the strong public support assumed by retentionist governments, there is, in fact, little appetite for the death penalty. We have also shown that wherever support does exist, it falls when the public has accurate information on the administration of the death penalty; in particular, on how it is unfair, unsafe, arbitrary and entirely unnecessary for reducing serious crime.

As Kenya moves towards its 36th year without an execution, we hope this new research, providing robust and reliable data, will reassure leaders that the public is open to change and Kenya’s opinion formers overwhelmingly support abolition.

ENDS

Parvais Jabbar is co-executive Director of The Death Penalty Project. Carolyn Hoyle is Professor of Criminology at the University of Oxford, Director of The Death Penalty Research Unit). Samson Omondi is Assistant Director at Kenya National Commission on Human Rights

Death Penalty Project

The Death Penalty Project (DPP) is a legal action NGO based at, and supported by, London legal firm, Simons Muirhead Burton LLP. For more than three decades, the DPP has worked to protect the human rights of those facing the death penalty.