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Photo: Elsy Sainna, ICJ Kenya Executive Director Image: HANDOUT

Pressure mounts for Kenya to abolish death penalty

  • DPP in the Media
  • 12 Oct 2023

The following article was originally published in both The Star,  as well as on  ICJ Kenya’s website, 9 October 2023.

In Summary:

  • “The law provides that when a person is sentenced to death, “he shall be hanged by the neck until he is dead.”
  • The Supreme Court’s decision in Francis Karioko Muruatetu in 2017 declared the mandatory nature of the death penalty as unconstitutional.

 

The ongoing campaign to have Kenya completely abolish the death penalty is gaining momentum with Ugunja Member of Parliament and Minority leader Opiyo Wandayi having presented the Penal Code (Amendment) Bill before the floor of the House.

The Bill has since gone through its first reading.

The amendment also targets other related laws including the Prison Act, the Legal Aid, the Kenya Defence Forces Act, the Preservation of Public Security and the Appellate Jurisdiction Act with regards to the death sentence.

Wandayi who described the law as archaic and torturous in nature said that the efforts to abolish the death penalty are timely since nations world over, especially in Africa, continue to blatantly abuse Human Rights of its citizens including those serving prison sentences.

“The law provides that when a person is sentenced to death, “he shall be hanged by the neck until he is dead.”

“This not only demonstrates the torturous and archaic nature of the death penalty but also warrants its urgent and immediate abolition as a form of punishment in Kenya,” Wandayi said.

Speaking during an event organized by ICJ Kenya to commemorate the 21st World Day Against the Death Penalty, Wandayi said the nature of the amendment is to replace the death sentence with life imprisonment.

The Supreme Court’s decision in Francis Karioko Muruatetu in 2017 declared the mandatory nature of the death penalty as unconstitutional.

“I’m very hopeful that these amendments will indeed see the light of day as the lives of numerous prisoners serving the death sentence depend on it,” Wandayi noted.

ICJ-Kenya Executive Director Elsy Sainna said calling for the abolition of the death penalty does not mean that victims of crimes are to be ignored.

She further noted that the penal system has diverse forms of punishment that can be explored beyond the death penalty, indicating that people’s lives can be preserved but equally held accountable for their actions.

“This year’s theme captures what those sentenced to death have to endure, both physical and psychological torture. The mental anguish and the uncertainty of being executed are inhumane and a form of torture we would not wish upon anyone,” Sainna said.

“Those sentenced to death and their sentences later commuted have to live with lifetime scars, which we only hope time can heal,” she added.

According to statistics from the Kenya Prisons Service, 101 Kenyans are on death row to date. Ninety nine are male while two are women.

Women on death row are said to suffer intersectional discrimination from the point of arrest, trial and sentencing.

Most women sentenced to death are victims of sexual and gender-based violence, which unfortunately, does not become a sufficient mitigating factor during sentencing according to ICJ Kenya executive director.

Kenya has not carried out an execution for over 30 years, however, hundreds remain on death row and continue to be sentenced due to the automatic nature of the death penalty.

A study by the Death Penalty project in collaboration with the Kenya National Commission Human Rights and Australian National University titled ‘The death penalty in Kenya: A punishment that has died out in practice’ from a random sampling of at least 1,672 found that 40 per cent of Kenyans favour abolition of the capital sentence.

In comparison, 10 per cent did not have a stand.

Additionally, only 51 per cent were in favour of retaining the death penalty and only 32 per cent were firmly in favour of retaining it.

The study also found that only 66 per cent were aware that Kenya retains the death penalty and only 21 per cent knew that no executions had taken place.

More than 61 per cent stated that some innocent Kenyans may have been sentenced to death while only eight per cent thought that no innocent Kenyan has been sentenced to death.

Equally, 59 per cent of those in favour of retaining the death penalty indicated that they would accept a new policy on the death penalty.

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