IN its busy last week of the year, Kenya’s highest court delivered a landmark decision unanimously declaring that the country’s mandatory death penalty was unconstitutional, and setting it aside.

The supreme court of Kenya was pronouncing on a section of the penal code which provides that “any person convicted of murder shall be sentenced to death”.

Two condemned prisoners, whose death sentences were later administratively commuted to life imprisonment, brought the application. In an odd twist the case was heard twice. It was first heard early in 2016 when judgment was reserved. Before a decision could be finalized, however, three members of the bench retired. The case was thus re-argued before the supreme court once replacement judges had been appointed.

Only six members of the seven-member court panel heard the matter: the same group of six that heard the 2017 application for the country’s elections to be declared invalid. The seventh member of the court, Judge Mohammed Ibrahim, was taken ill during the election case hearings. He had not returned to work by the end of last year and he was not part of the panel that decided the death penalty case.

During argument one of the many disquieting results of a mandatory sentence became obvious. Judges hearing a trial had virtually no judicial role once they had convicted an accused of a capital crime: there was no point in hearing evidence in mitigation of sentence, for example, because it made no difference to the outcome, regardless of the individual’s circumstances that might reduce the blameworthiness of the crime.

This infringed the doctrine of separation of powers, the court heard, because the legislature effectively took over and the judiciary was left with no role in sentencing.

Surprisingly, the Director of Public Prosecutions conceded the central element of the case – that a mandatory death sentence was unconstitutional. In the view of the NDPP, the best way to resolve the case of the two prisoners who brought the application was to refer their matter to the high court for resentencing – a step that was also requested in argument on behalf of the prisoners.

Several groups appeared in the case as friends of the court, some of them argued that the court should consider whether the death penalty itself was compatible with the constitution, but they agreed that since this question was not an issue in the prisoners’ appeal, it would have to be left to another day.

The court’s decision is worth reading for judges in other countries as well. This is partly because of the wide number of important cases from Africa and elsewhere, quoted and discussed as persuasive by the six supreme court judges.

The decision is also significant because it shows the outcome is part of a clear trend. Kenya is now the third African country to declare that an automatic sentence is unconstitutional and must go. A 2005 decision of the supreme court in Uganda found that a mandatory death penalty was unconstitutional, and two years later the constitutional court of Malawi came to the same conclusion.

A similar outcome has been reached in a number of other jurisdictions, and the court trawled international law to find cases where, for example, the UN Human Rights Committee had spoken out against a mandatory death sentence. The judges also pointed out that Kenya had signed the International Covenant on Civil and Political Rights and that this covenant bound its signatories not to impose the death sentence as mandatory.

Commenting on the provision providing for automatic capital punishment, the judges said, “To our minds, what (this section) is essentially saying to a convict is that he or she cannot be heard on why, in all the circumstances of his or her case, the death sentence should not be imposed on him or her, or that even if he or she is heard, it is only for the purposes of the record … because the court has to impose the death sentence nonetheless …. Try as we might, we cannot decipher the possible rationale for this provision. We think that a person facing the death sentence is most deserving to be heard in mitigation because of the finality of the sentence.”

The judges said they were “greatly persuaded” by the case in Uganda that set aside a mandatory death sentence. Given the “brutal reality” of an automatic sentence the section was clearly “out of sync” with Kenya’s progressive Bill of Rights. The section was a “colonial relic that has no place in Kenya today,” they concluded.

What about the way forward? First, the judges stressed that their decision did not impact on the death penalty itself: the validity of this punishment would have to be tested in a future case.

The judges said the Attorney General and Parliament should set up an inquiry leading to new legislation on what constituted a life sentence. As for the prisoners who had brought the challenge to the mandatory death sentence, the judge said the high court should reconsider their sentences as a matter of priority.

They stressed however that the sentence rehearing order applied only to the two prisoners involved in this particular case. Others should not bring applications to court directly, but should wait for Parliament’s guidelines: “The Attorney General is directed to urgently set up a framework to deal with sentence re-hearing of cases relating to the mandatory nature of the death sentence.”

The AG was to report back to the court within 12 months on the progress achieved. This is an important order. By insisting on maintaining oversight of developments in the matter the court was indicating that it regarded the matter as crucial and wanted to ensure that it was resolved as soon as possible.

Finally, they directed that their judgment be placed before the Speakers of the National Assembly and the Senate, the AG and the Kenya Law Reform Commission, with a “signal of the utmost urgency” for changes to be made giving effect to the findings in the judgment.  

  • The question of the death penalty in Kenya is a complex one: no executions have been carried out since 1987 and in 2009 the sentences of all death row prisoners were commuted to life imprisonment. Despite this, the courts have continued to impose the death penalty and the number of such prisoners is now well over 4 000.  
  • Reacting to the judgment, the NGO Amnesty International – a strong opponent of capital punishment – described the court’s decision as a significant step towards complete abolition of the death penalty. The organization said it was now time for Kenya to abolish the death penalty fully “and join the 105 countries that have completely consigned the punishment to history”.
  • Like Kenya, Uganda has maintained the death penalty as a valid punishment, even though it may no longer be imposed as an automatic sentence. Uganda’s president, Yuweri Museveni, last week threatened to “hang a few” people to see if it reduced the country’s murder rate, sparking outrage from anti-death penalty activists.