Attorney-General Kihara Kariuki wants the High Court to order the creation of a task force to review the mandatory death penalty in robbery with violence cases.
The panel would then table its recommendations on guidelines for courts.
The team will provide an accurate number of death-penalty convicts and delays in executing the sentences. There were 838 robbery with violence prisoners in 2018.
The AG, through state counsel Eunice Mvoi, was responding to a petition from robbery with violence convicts challenging the constitutionality of mandatory death sentences.
In his submissions, he said the death penalty is lawful under Article 26(3) of the Constitution.
The 20 convicts from Shimo la Tewa prison want mandatory death sentences as provided for under sections 296(2) and 297 (2) of the Penal Code declared unconstitutional.
“We invite the court to review the rationale of death sentences for capital offences, the AG notes that Kenya, as a British colony automatically adopted the death penalty upon gaining independence yet the colonisers abolished the penalty in 1965,” the AG says.
The AG added that “the last executions were on or about 1987, evidently Kenya is a de facto abstinent state (the death penalty exists in the statute books but is not carried out).”
He said that considering an earlier report from the Kenya Law Reform Task Force on changing the penal law and another report on the
Francis Muruatetu case (Francis Karioko Muruatetu & Another v Republic), it was evident that the state intends to declare the provisions of Section 296 and 297 unconstitutional.
“But the existence of the constitutional provisions of Article 26 (3) hinders realisation of that intention,” argues the AG.
In the Muruatetu case, the Supreme Court declared that the mandatory nature of the death sentence as provided for under the Penal Code was unconstitutional, but justices said their order did not disturb the validity of the death sentence as contemplated under Article 26 (3) of the Constitution.
After this decision, hundreds of robbery with violence and sexual offence convicts rushed to the High Court and filed petitions seeking re-sentencing.
Many were lucky as their sentences were reduced after mitigation while others walked out of the prison gates after being set free.
On July 6 last year, the re-sentencing of robbery with violence and sexual offences convicts came to a halt after the Supreme Court issued further directives, stating that the Muruatetu decision applied to sentences in murder cases under Section 203 and 204 of the Penal Code.
The robbery with violence convicts also want the court to order re-hearings on sentences depending on the individual circumstances of each convict.
They say their grievance is not about their convictions but about the unconstitutionality of the mandatory death sentence.
“We are complaining about the mandatory death sentence as a result of the failure by the Supreme Court to include and declare it ... unconstitutional and give directions on re-hearing and mitigation,” the petition states.
The convicts argue that the circumstances facing them are similar to those murder convicts face under Section 204 of the Penal Code.
The convicts argue that removing the mandatory sentences will be in order, just and equitable because it will be in line with the requirement of fair treatment as envisaged in the Constitution.
