In Kenya, thousands have been sentenced to death for various capital offences but no one has actually been executed since 1987.
For the last 36 years, convicts have been left dreading the possibility of every day being their last.
The last person to face the hangman’s noose was Hezekiah Ochuka who was found guilty of treason for the 1982 attempted coup. He was hanged at the Kamiti Maximum prison in July 1987.
Unlike those serving prison terms, those sentenced to death cannot work and are locked up most of the day. They engage in no useful activity and are kept away from family and other inmates.
The recent death sentence handed to former police sergeant Fredrick ole Leliman for the murders of lawyer Willie Kimani, his client Josephat Mwenda and taxi driver Joseph Muiruri has reignited the conversation on the death penalty in the country.
Kenya is among 22 countries in Africa that are yet to abolish the death penalty but have not carried out any executions in the last decade, according to Amnesty International.
The death penalty is given as punishment to a person convicted of a capital offence. Currently, people convicted of murder, robbery with violence, attempted robbery with violence or treason can be sentenced to death.
Prior to a Supreme Court decision in 2017 which declared the mandatory death penalty as unconstitutional, a person would automatically be sentenced to death if they were convicted of any of the capital offences. It would not matter if they had not committed a crime before or had only stolen a chicken.
The court declared the mandatory death penalty unconstitutional after two convicts on death row, Francis Karioko Muruatetu and Wilson Thirimbu Mwangi, argued that it infringed on their right to life.
That decision meant judges now retain the discretion to hand down the death penalty or instead sentence convicts to a lesser punishment.
The Supreme Court judges led by former Chief Justice David Maraga also allowed for the review of cases of those who had been convicted to death. This led to hundreds of convicts rushing to the courts and filing petitions seeking re-sentencing.
Some got their sentences reduced after mitigation while others walked out of prison gates after being set free.
But the Supreme court would later in July 2021 halt the re-sentencing of convicts who had been condemned to death, stating that the Muruatetu decision applied only to sentences in murder cases under the Penal Code.
The convicts are now seeking to have the Court order re-hearings on their sentences depending on their individual circumstances. Just like Muruatetu, robbery with violence convicts want the death penalty to be declared unconstitutional.
The Attorney General last year proposed the creation of a taskforce to review the mandatory death penalty in robbery with violence cases.
Reports indicate that between 1963 and 1987, 280 persons sentenced to death were executed in Kenya.
In 2009, the late president Mwai Kibaki commuted the sentences of 4,000 convicts on death row to life.
The government wanted to ensure that the prisoners would finally be able to partake in physical labour and learn new skills from which death row prisoners were at the time exempt.
Former President Uhuru Kenyatta also commuted 2,747 death sentences to life sentences in 2016.
The Kenya National Bureau of Statistics show that death sentences were highest in 2014, when 2,757 offenders were condemned to face the hangman. In 2015, the number stood at 1,059 which was almost five times more than the 220 sentences in 2010.
KNBS statistics show a decline in the number of people sentenced to death with 760, 811, 385, 119 being sentenced to capital punishment in 2016, 2017, 2018 and 2019 respectively.
When the pandemic hit in 2020, only 20 people were convicted to death and another 73 in 2021.
While the country has not carried out any executions in the last 36 years, human rights groups have called for the abolishment of the death penalty saying it does not deter people from doing crime.
Amnesty International Kenya through its Executive Director Irungu Houghton says Kenya needs to join the league of 120 nations that have abolished the death penalty so far before World Death Penalty Day on October 10.
During the sentencing of Ruth Kamande to death for killing her boyfriend in 2018, Mr Houghton said: “It is concerning that Kenya continues to use this cruel, inhumane and outdated mode of punishment. The death penalty is a blow to Kenya’s progressive record in commuting death sentences to terms of imprisonment.”
A report by the Kenya National Commission on Human Rights (KNCHR), Oxford University and Death Penalty Project released in December last year found that the vast majority of those sentenced to death did not know their crimes attracted a death penalty. The report also says the convicts were not worried about being sentenced to death.
“The majority (72 percent) of those convicted of robbery with violence were motivated by financial gain and could not be deterred from committing the crime despite knowing it attracted a death penalty,” the report read.
The report noted that the death sentence was an ineffective deterrent or rehabilitative tool for serious criminals.
It further recommends that abolishing capital punishment would allow prisoners to be better able to reflect on the harms they have caused in their past without constantly anguishing over the thought that they could be executed at any given time.
“Though Kenya has not executed its death sentenced prisoners for decades, death sentences continue to be imposed and the threat of execution remains, as prisoners know that policy or practice could change – for example, with a new government.”
