More than 4,000 convicts sentenced to death for capital offences may heave a sigh of relief after the Supreme Court yesterday challenged Parliament to progressively outlaw the mandatory death penalty.
The six-member Supreme Court bench, chaired by Chief Justice David Maraga, passed a stinging indictment on what they described as “cruel, inhuman and degrading condemnation of prisoners without affording them an opportunity to mitigate and tying the hands of judges and magistrates from considering exceptional circumstances of individual cases”.
Section 204 of the Penal Code, which prescribes the death penalty for those found guilty of murder, treason and violent robbery, was illegal and unconstitutional, justices Maraga, his deputy Philomena Mwilu, Jacton Ojwang’, Smokin Wanjala, Njoki Ndung’u and Isaac Lenaola declared in a unanimous landmark decision.
The sentences imposed on the convicts require urgent review once the necessary guidelines have been formulated by Attorney General Githu Muigai and the Director of Public Prosecutions Keriako Tobiko, for sanction by the National Assembly, the highest court in the land pointed out.
As a first step, the court directed the AG to form an inter-governmental committee to engage Parliament to prescribe the minimum sentences convicts should serve behind bars before they qualify for parole.
Githu should prepare a progress report within 12 months on the weaknesses in the sentencing regime to lay the groundwork for urgent remedial action.
The first beneficiaries of the historic decision are former Administration Police Inspector Francis Kariako Muruatetu and businessman Wilson Thiribu, whose appeal against the death sentence was thrown out by the Court of Appeal on May 20, 2011.
The two, alongside five others, were found guilty by High Court Judge Msagha Mbogholi, of killing prominent land dealer Lawrence Githinji Magondu in Kitengela on February 4, 2000.
They had jointly been condemned to die alongside Elizabeth Gitiri, wife of former lands commissioner Wilson Gachanja, who was acquitted by the Court of Appeal after serving nine years in jail.
Muruatetu and Thiribu, who were represented by lawyers Fred Ngatia and Kioko Kilukumi, are now required to file a constitutional petition in the High Court seeking a review of their sentences.
They could go scot-free or have their jail terms slashed if they are successful. Ngatia had argued that the automatic death penalty was a relic of colonialism that made a mockery of the rights of accused persons to offer mitigation before sentencing and lodge appeals once they were aggrieved by the outcome of their trials.
It was unconstitutional for courts of law to render uniform predetermined punishment for capital offences without considering circumstances of each case, the lawyer had said.
Ngatia had explained that the judicial system was facing a crisis since the Court of Appeal invalidated the mandatory death penalty for murder on May 20, 2011 but the decision was virtually overturned by the same bench on October 18, 2013. It was unjust to render mitigation and appeals mere academic exercises, he said.
During the hearing of the case in December 2016, Muigai and Tobiko had concurred that the death penalty violated the Constitution by compromising the right of fair trial for accused persons. Further, the statutory sentence deprived judicial officers the discretion to interrogate appropriateness of sentences, they had conceded.
Muigai had disclosed that more than 4,000 convicts were affected by the controversial sentence “and the time for reforms has come.” An urgent legal framework was necessary to resolve the obvious consequences of the invalidation of the offending provision of the law, he had elaborated.
The government has observed an unofficial moratorium on executions after Retired President Mwai Kibaki commuted all death sentences to life imprisonment in August 2009. Further, there is no consensus among Kenyans regarding the death penalty, Muigai said.
However, the AG explained that judges should be vested with the power to determine the minimum period a convict serving life imprisonment should be considered for parole. “We are committed to finding a lasting solution. Parliament should legislate on these crucial issues,” he had said.
Senior assistant DPP Njagi Nderitu had submitted that the mandatory death sentence offended the doctrine of separation of powers between the three arms of government by invading judicial discretion and denying accused persons their constitutional rights to fair trial.
Parliament could only prescribe maximum sentences and give judicial officers the leeway to determine punishment that was commensurate with the nature and circumstances of offences, he had proposed in his arguments.