Number of those condemned to death falls as debate on capital punishment rages

The Prisons Department has confirmed that 99 men and two women were on death row as of Monday.

“That tallies to 101 against a total number of about 62,000 prisoners in the country. They are mostly distributed in Kamiti, Naivasha, Nyeri, Shimo la Tewa and Kabianga maximum security prisons,” said Earnest Welunga, a superintendent of prisons representing the Commissioner of Prisons Brig (Rtd) John Warioba at an event to mark the 21st World Day Against the Death Penalty.

While the numbers are low compared to previous years, they expose the country's indecision over whether or not to abolish the death penalty, which was declared unconstitutional by the Supreme Court in 2018.

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The day is observed annually on October 10, and as the country joins the world in commemorating the day under the theme 'Death penalty: an irreversible torture', civil rights groups are calling on the government to take a stand and end this protracted debate.

Although the mandatory nature of the death penalty under Section 204 of the Penal Code has been declared unconstitutional, judges in Kenya continue to sentence Kenyans to death, the most recent high-profile case being the sentencing of former police officer Fredrick Leliman in February this year.

“The state hides under the veil that the public is not ready for an abolition debate but we have since proven that not to be true. In 2019, we commissioned a scientific study that sampled 1,672 persons spread across the country who overwhelmingly supported the abolition. A similar study was commissioned later targeting members of the criminal justice system 90 percent of whom also supported it,” said Samson Omondi, the senior human rights officer at the Kenya National Commission on Human Rights.

Esy Sainna, the executive director of ICJ-Kenya, said that calling for the abolition of the death penalty does not mean that the perpetrator has escaped severe punishment for their actions, but that the right to life is protected.

“The mental anguish and the uncertainty of being executed are inhumane and a form of torture we would not wish upon anyone...the idea that the death penalty is still a form of punishment in our statute books is haunting,” she said.

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In the latest push to abolish the death penalty, Minority Leader Opiyo Wandayi is seeking amendments to the Penal Code, Cap 63 Laws of Kenya and the Prisons Act, the Legal Aid Act, the Kenya Defence Forces Act, the Preservation of Public Security Act and the Appellate Jurisdiction Act in order to replace the death penalty with life imprisonment.

"The law provides that when a person is sentenced to death, 'he shall be hanged by the neck until he is dead'. Ladies and gentlemen, 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 our country. The death penalty is a punishment shaped by the constraints of poverty, race, geography and local politics. It is for this reason that the death sentence should be removed from our statute for good,” he said.

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Although Mr Welunga could not immediately confirm that the two women on death row were sentenced after killing their intimate partners, he said there was a correlation between women on death row and gender-based violence.

“Most women sentenced to death are victims of sexual and gender-based violence, which unfortunately does not become a sufficient mitigating factor during sentencing,” Ms Sainna said.

Jane Kuria, a newly appointed member of the Advisory Committee on the Power of Mercy and founder of the Faraja Foundation, which works to uphold human rights in prisons, says a person sentenced to death suffers irreversible torture even if the sentence is commuted to life imprisonment.

"I have talked to many prisoners on death row who have told me that life imprisonment feels like a load has been removed from their head and placed on their shoulders. It’s worse for women who ended up convicted for murder after killing their partners in self-defence; they feel guilty, some turn suicidal and lose hope in life because the sentence leaves them isolated as the abusive partner moves on with life,” she said.

In 2009, President Mwai Kibaki commuted the sentences of 4,000 death row prisoners to life imprisonment, followed by President Uhuru Kenyatta in 2016, who commuted all death sentences to life imprisonment, removing 2,747 prisoners from death row.

President William Ruto this year reduced the death penalty to life imprisonment for all prisoners convicted before November 21, 2022.

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