The Judiciary has tabled two Bills in the National Assembly proposing sweeping changes to the Penal Code and the Criminal Procedure Code to bring them in tandem with international human rights standards.
Key among the proposals is the readjustment of sentences for murder and robbery to ensure proportionate punishment for different crimes.
The Penal Code (Amendment) Bill, 2023 also seeks to revise life imprisonment to mean imprisonment for a term of 30 years.
The amendment also seeks to decriminalise attempted suicide by deleting the section in the Principal Act under which a person who attempts suicide is guilty of a misdemeanour.
The amendments also seek to abolish the privilege of publishing defamatory statements. Under the new proposals, causing the death of another person by an unlawful act or omission will no longer be a simple case of murder, but will be classified as either first-degree or second-degree murder.
First-degree murder includes causing the death of another person by poisoning, inflicting grievous bodily harm or any other type of intentional, deliberate, malicious and premeditated killing.
It also includes arson, treason, escape, murder, kidnapping, abduction, torture, injury by explosive substances, acts of terrorism, espionage, sabotage, intimidation, harassment, sexual offences, child abuse, burglary, robbery or robbery.
However, second-degree murder involves causing the death of another person through a negligent act or omission in the performance of duty that is not accompanied by an intent to cause death or bodily injury.
In terms of punishment, instead of the current death penalty for a person convicted of murder, the amendment states that a person convicted of murder in the first degree shall be sentenced to death, while a person convicted of murder in the second degree shall be sentenced to life imprisonment.
Presenting the bills to National Assembly Speaker Moses Wetang'ula, Chief Justice Martha Koome said the Penal Code (Amendment) Bill, 2023 and the Criminal Procedure (Amendment) Bill, 2023 make special provisions for the trial and defence of persons with intellectual and mental disabilities to ensure a just, fair and sympathetic judicial process.
She said the main objective of the amendment to the Penal Code was to provide for human rights language in relation to persons with intellectual and psychosocial disabilities; to remove children sentenced to death as an alternative to imprisonment at the pleasure of the President; to shift the burden of proof for the offences of incitement to violence and disobedience from the accused to the prosecution; and to abolish petty offences.
The CJ said it also seeks to amend provisions relating to the mandatory death penalty in line with the Supreme Court's rulings on prevailing human rights standards. She added that the bill also seeks to amend the Penal Code to protect intersex persons affected by criminal justice processes and to cascade the offences of murder and robbery to ensure commensurate punishment for the different offences.
In 2018, the Supreme Court rejected a request by two convicts to define what constitutes a life sentence.
Instead, six judges of the apex court directed the Attorney-General and Parliament to launch a study and draft legislation to define what constitutes a life sentence.
The judges, led by Chief Justice David Maraga, said this could include a minimum number of years to be served before a prisoner is considered for parole or remission, or provision for prisoners to serve whole life sentences in certain circumstances.
The two convicts wanted the court to determine whether the "indeterminate" or "indefinite" life sentence was unconstitutional and whether the court should set a specific number of years of imprisonment, subject to remission rules.
The judges ruled that murder is so different that it is wrong to prescribe the same sentence for all murders.
In South Africa, the law provides for minimum terms of imprisonment for a relatively small number of serious offences, including murder, rape, robbery and serious economic crimes. The minimum mandatory sentence is 15 years imprisonment, rising to 20 and 25 years for offenders with previous convictions for the same offence.
Under Kenya’s Penal Code, the death penalty is legal, but other offences such as treason (Section 40), taking an oath to commit a capital offence (Section 60), murder (Section 204), robbery with violence (Section 296(2)) and attempted robbery with violence (Section 297(2)) carry the death penalty.
During the Supreme Court hearing, then Attorney-General Githu Muigai argued that a life sentence should not be equated with the natural life of the convicted person and that a judge should be given the opportunity to set a date when parole could be considered.
The judges said that a life sentence should not necessarily mean the natural life of the prisoner; it could also mean a certain minimum or maximum period to be determined by the relevant judicial officer in accordance with established parameters of criminal responsibility, retribution, rehabilitation and recidivism.
The proposed legislation also seeks to redefine robbery as either first-degree or second-degree, the former being the most serious as it involves being armed with a firearm or offensive weapon and wounding or causing violence to another person.
Second-degree robbery will now include threats to use actual force against a person or property to obtain or retain stolen property.
A person convicted of first-degree robbery will be liable to the death penalty, while a person convicted of second-degree robbery will be liable to life imprisonment, i.e. 30 years.
Being armed, displaying or wounding another person with a firearm or offensive weapon or an obnoxious or chemical substance with intent to steal anything will now attract a life sentence, down from a death sentence. However, any person who uses or threatens to use any other form of violence against a person or property to obtain or retain the thing will now be guilty of a felony and liable to imprisonment for a term not exceeding 14 years.
Among the proposed changes to the Criminal Procedure Code is the amendment of the Principal Act by inserting a new section 27A relating to intersex persons. The proposals state that, whenever it is necessary to cause an intersex person to be searched, the search shall be conducted with dignity by a person of the intersex person's preferred gender. An intersex person is a child or adult with a congenital condition in which the biological sex characteristics do not fall exclusively within the common gender binary of female or male. Intersex people have congenital and mixed anatomical, hormonal, gonadal or chromosomal patterns that become apparent before birth, at birth, during childhood, puberty or adulthood.
In a 2010 judgment, the Court of Appeal ruled that searches for intersex people must be carried out with the utmost decency and respect for human dignity. The court said that invasive body searches should be carried out using modern technology, such as that used in some airports.
Other proposed amendments include deleting the use of the word "insane" and replacing it with "suffering from a mental disorder" and in subsection (3), deleting the word "insanity" and replacing it with the words "mental health".
The Judiciary has also proposed to amend section 146 of the CPC by deleting the words "being an idiot or imbecile" and replacing them with the words "having an intellectual or psychosocial disability". A new section 162 has been added to deal with the question of whether an accused person is fit to stand trial, stating that the court should consider a number of things before deciding whether a person is fit to stand trial.
The proposal states that an accused person shall be deemed unfit to stand trial if, by reason of an intellectual or psychosocial disability or mental disorder, he or she is unable to understand the nature or course of the proceedings so as to (a) plead to the charge; (b) instruct a legal representative; (c) prepare an adequate defence; or (d) understand the evidence.
If the court is satisfied, on the basis of evidence from a medical officer, that the accused person has an intellectual or psychosocial disability within the meaning of the Mental Health Act and is in need of inpatient care or treatment in a mental hospital, the court shall commit him or her to a specified mental hospital.
If the court is of the opinion that an accused person has been found not guilty by reason of his inability to understand the nature or consequences of his acts or omissions, the court shall commit him to a specified mental hospital for a period not exceeding fourteen days and shall order that he be examined during that period by the medical officer in charge of the mental hospital.
The proposal also seeks to amend Section 198 of the Principal Act to include Kenya Sign Language as a language used in court alongside Kiswahili and English.
