Death Sentence in Kenya. WHAT DOES THAT MEAN?

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By Selija Achaya

Kenya is among the countries in the world that still implement the death sentence as a form of punishment for certain crimes. The death penalty has always been a contentious issue, with some people arguing for its effectiveness in deterring crime, while others believe that it is a violation of human rights. In Kenya, the death sentence is handed down for a variety of crimes, including murder, treason, and robbery with violence.

On Wednesday 13th March 2024 an ongoing murder trial involving Jowie Irungu for the murder of Monica Kimani came to an end. He was handed a death sentence by Judge Nzioka.

However, the implementation of the death sentence in Kenya is not as straightforward as it may seem. There are legal procedures that must be followed before a person is sentenced to death. And there are also different types of death sentences that can be handed down. For example, a person can be sentenced to death by hanging, or they can be sentenced to death by lethal injection. Additionally, different levels of appeals can be made in death penalty cases, which can prolong the process for years or even decades.

Overview of the Death Sentence in Kenya

The death sentence is the most severe punishment in Kenya’s criminal justice system. It is a penalty imposed on individuals who are found guilty of capital offenses such as murder, treason, or robbery with violence.

The use of the death sentence in Kenya has been a topic of controversy, with some arguing that it is a necessary deterrent for serious crimes. Though a death sentence it hasnt been delivered to any prison for over 30 years. Although death sentence is offered prisoners just stay in prison.

According to the Kenya National Commission on Human Rights, there were 400 individuals on death row in Kenya as of 2020. However, the majority of these individuals have had their sentences commuted to life imprisonment due to the country’s moratorium on the death penalty.

The death sentence in Kenya is governed by the Penal Code and the Criminal Procedure Code. The Penal Code outlines the offences that are punishable by death, while the Criminal Procedure Code provides guidelines for the trial and sentencing process.

Legal Framework Governing Capital Punishment

In Kenya, capital punishment is legal and can be imposed for certain crimes such as murder, treason, and robbery with violence. The legal framework governing capital punishment is primarily found in the Penal Code, which outlines the offences that are punishable by death.

Under the Penal Code, a person convicted of a capital offence is sentenced to death by hanging. However, the Constitution of Kenya provides for the right to life and prohibits the deprivation of life except per the law. This means that the imposition of the death penalty must comply with the constitutional safeguards and due process requirements.

The imposition of the death penalty in Kenya is subject to a mandatory appeal to the Court of Appeal, which reviews the sentence and conviction for errors of law and fact. The Court of Appeal has the power to confirm the sentence, reduce it to life imprisonment, or quash the conviction and order a new trial.

In addition, the Constitution of Kenya provides for the right to petition the President for clemency.It can lead to the commutation of the death sentence to life imprisonment or a lesser sentence. The process for power of mercy involves an application to the Advisory Committee on the Power of Mercy, which makes recommendations to the President.

Overall, the legal framework governing capital punishment in Kenya provides for constitutional safeguards and due process.The requirements ensure that the imposition of the death penalty is carried out in a fair and just manner.

Crimes Punishable by Death

In Kenya, the death sentence is the highest form of punishment. It is reserved for the most serious crimes, such as murder, treason, and robbery with violence. The Kenyan Penal Code specifies the crimes that are punishable by death.

Murder is one of the most common crimes that carry the death sentence. It is defined as the intentional killing of another person. The death sentence is also applicable in cases where the victim dies as a result of injuries sustained during a robbery with violence.

Treason is another crime that is punishable by death in Kenya. It is defined as the act of betraying one’s country by attempting to overthrow the government or aiding an enemy during a war.

Robbery with violence is also a crime that can lead to the death sentence. It is defined as the use of violence during a robbery. This includes the use of weapons, physical force, or the threat of violence.

Other crimes that can lead to the death sentence in Kenya include attempted murder, piracy, and drug trafficking. However, the death sentence is rarely imposed for these crimes.

Overall, the death sentence is a serious punishment reserved for the most serious crimes in Kenya. While it is still legal in the country, there has been a growing movement towards its abolition in recent years.

Judicial Process for Capital Offenses

The death penalty is a legal form of punishment for certain crimes, including murder, treason, and robbery with violence. The process for capital offences involves several steps and is governed by the Constitution and the Penal Code.

Once a suspect is arrested and charged with a capital offence, they are entitled to a fair trial. The trial is held in a High Court, and the defendant has the right to legal representation. The prosecution must prove beyond a reasonable doubt that the defendant committed the crime.

If the defendant is found guilty, the trial moves to the sentencing phase. The judge must consider aggravating and mitigating factors before deciding whether to impose the death penalty. Aggravating factors may include the brutality of the crime or the defendant’s prior criminal record. This mitigating factors may include the defendant’s age or mental state at the time of the offence.

If the judge decides to impose the death penalty, the defendant has the right to appeal the decision to the Court of Appeal. The Court of Appeal may review the case and either uphold or overturn the death sentence.

If the death sentence is upheld, the defendant may further appeal to the Supreme Court. The Supreme Court may review the case and either uphold or overturn the death sentence.

If the death sentence is upheld at the Supreme Court level, the President of Kenya has the power to grant clemency and commute the sentence to life imprisonment. However, in practice, mercy is rarely granted.

Overall, the judicial process for capital offences in Kenya is a complex and lengthy one, with multiple levels of review and appeal.

Appeals and Clemency Procedures

In Kenya, death sentences can be appealed, and there are procedures in place for clemency. The appeals process is initiated by the convicted person or their legal representative, and it involves filing a notice of appeal within 14 days of the sentence. The appeal is then heard by a higher court, which can either confirm the sentence, reduce it to life imprisonment, or acquit the accused.

If the appeal is unsuccessful, the convicted person can still apply for clemency. This involves making an application to the President of Kenya, who has the power to commute the sentence to life imprisonment or pardon the person altogether. The application must be accompanied by a detailed report on the case, including any mitigating circumstances and evidence of rehabilitation.

In addition to these formal procedures, various organizations and individuals advocate against the use of the death penalty in Kenya. These include human rights groups, religious organizations, and legal experts who argue that the death penalty is an inhumane punishment that has no place in a modern justice system.

Despite these efforts, however, the death penalty remains on the books in Kenya, and it continues to be used in certain cases. As of March 2024, there were approximately 100 people on death row in Kenya, with new death sentences being handed down each year.

International Perspectives and Human Rights

The use of the death penalty is a controversial issue worldwide, with many countries abolishing it due to concerns over human rights violations. Kenya is one of the countries that still retains the death penalty as a legal punishment for certain crimes.

International human rights organizations such as Amnesty International have been critical of Kenya’s use of the death penalty. They argue that it violates the right to life, which is enshrined in the Universal Declaration of Human Rights. Additionally, there are concerns about the fairness of trials that result in death sentences, as well as the possibility of executing innocent individuals.

Kenya has also faced criticism from other countries and international bodies for its use of the death penalty. In 2018, the European Union issued a statement calling for Kenya to abolish the death penalty, citing concerns about human rights violations.

Despite these criticisms, the Kenyan government has defended its use of the death penalty as a necessary deterrent to serious crimes such as murder and treason. They argue that it is an important tool in maintaining law and order in the country.

The use of the death penalty remains a contentious issue in Kenya and around the world, with arguments on both sides of the debate. However, it is clear that international human rights organizations and other countries will continue to pressure Kenya to reconsider its use of this controversial punishment.

Public Opinion on the Death Sentence

The death sentence is a highly debated topic in Kenya. While some argue that it is an effective crime deterrent, others believe that it is a violation of human rights.

Those in favour of the death sentence argue that it is necessary to ensure justice for victims and their families. They believe that it serves as a warning to potential offenders and helps to deter crime. In addition, some argue that the death penalty is a more cost-effective solution than life imprisonment.

On the other hand, opponents of the death sentence argue that it is a cruel and inhumane punishment. They believe that it violates the right to life and that there is always a risk of executing innocent people. Furthermore, some argue that the death penalty does not actually deter crime, but rather reinforces a culture of violence.

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Alternatives to the Death Penalty

While the death penalty has been used as a form of punishment for centuries, there are alternatives that some countries have adopted. These alternatives aim to achieve justice for the victim and their families while still upholding the human rights of the accused.

One alternative is life imprisonment without the possibility of parole. This means that the offender will spend the rest of their life in prison, without the chance of release. This alternative has been adopted by some countries as a way of punishing the offender while avoiding the irreversible nature of the death penalty.

Another alternative is restorative justice. This approach focuses on repairing the harm caused by the offender to the victim and their community. This can involve the offender meeting with the victim or their family to apologize and make amends. This alternative has been used in some countries as a way of achieving justice while also promoting healing and reconciliation.

Community service is also an alternative to the death penalty. This involves the offender performing a certain number of hours of community service, such as cleaning up a park or working at a food bank. This alternative has been used as a way of punishing the offender while also benefiting the community.

These are alternatives to the death penalty that can achieve justice for the victim and their families while upholding the human rights of the accused. These alternatives aim to promote healing and reconciliation while avoiding the irreversible nature of the death penalty.

Conclusion

Despite these arguments, there are still many in Kenya who support the death penalty. They argue that it is necessary to ensure justice for victims and their families, and that it serves as a deterrent to potential criminals.

Currently, there is no clear consensus on the future of capital punishment in Kenya. It remains a contentious issue that is likely to be debated for years to come.

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