Why MP Opiyo Wandayi wants law amended to abolish death sentence

The death penalty for capital offences could soon be expunged from Kenya’s law books if a proposal to amend it comes to pass.

Opiyo Wandayi, the National Assembly minority leader and Ugunja MP, wants the Penal Code amended to abolish the death sentence, and its replacement with life imprisonment for convicts..

The Penal Code (Amendment) Bill 2023 by Mr Wandayi seeks to delete each section in which the words “sentenced to death” appear and replace the same with the words “life imprisonment”. The targets are sections 40 (3), 60, 204, 296 (2) and 297 (2) of the statute book.

The Article stipulates that a person shall not be deprived of life intentionally, except to the extent authorised by “this Constitution or other written law”.

Mr Wandayi says that the death sentence violates Article 26 (3) of the Constitution.

He is further motivated by the fact that the right to life is sacrosanct as guaranteed by the 2010 constitution.

“The time is ripe for Kenya to abolish this penalty that does not conform to international human rights standards, which Kenya has ratified. It amounts to violation of the fundamental right to life,” the lawmaker says.

He adds that without life, other rights cannot be enjoyed “since the right to life forms the basis for the enjoyment of other human rights”.

Thousands sentenced

A total of 6,058 prisoners have been sentenced to death since 2011 according to the Kenya National Bureau of Statistics (KNBS), including former police officer Fredrick Leliman, who was recently put on death row over the murder of lawyer Willie Kimani of the International Justice Mission (IJM) and two others.

However, they have not been hanged.

“The reasoning and factors behind the death penalty cannot withstand serious examination and, therefore, the death penalty ought not to be retained in our laws. In any case, Kenya appears to be a reservationist state in implementation of the death penalty,” the Ugunja MP says.

While the law still recognises the death penalty as a mandatory punishment for capital offences, the last known execution took place in 1986.

Former military men Hezekiah Ochuka and Pancras Oteyo were executed for their roles in the failed 1982 coup, a treasonable offence that attracts the death sentence.

Since then, there has been an informal moratorium on executions.

For instance, in August 2009, the then President Mwai Kibaki commuted about 4,000 death sentences to life imprisonment. Immediate former President Uhuru Kenyatta, in October 2016, commuted all death sentences to life imprisonment, removing 2,747 offenders from death row.

These moves have acted as a signal of the government’s commitment to abolish the death penalty in line with international human rights obligations.

“To support the death penalty is to teach that violence and killing is an acceptable way of dealing with serious crimes. The use of the death penalty only lowers the standards of our government to the mentality of the murder itself,” says Mr Wandayi.

“It only demonstrates that the government is not different from the murderer. We do not punish rape with rape or burn down the house of an arsonist. We should not, therefore, punish the murderer with death.”

Supreme Court ruling

The third-term legislator’s desire to amend the law is for compliance with the Supreme Court judgment of December 14, 2017, that effectively settled the death penalty debate in the case of Francis Karioko Muruatetu and another offender versus the republic.

The apex court held that the mandatory nature of the death sentence, that courts were using to impose it as provided for under law, was unconstitutional.

“The mandatory nature of the death sentence as provided for under Section 204 of the Penal Code is hereby declared unconstitutional. For the avoidance of doubt, this order does not disturb the validity of the death sentence as contemplated under Article 26 (3) of the Constitution,” the Supreme Court ruled.

This means that the courts are not compelled to pass death sentences on offences that originally attracted the punitive sentence before the new Constitution was promulgated on August 27, 2010.

The mandatory nature of the death sentence, provided for in section 204 of the Penal Code that Mr Wandayi is targeting for repeal, long predates any international agreements for the protection of human rights.

Kenya is a signatory and a state party to numerous international human rights instruments which provide for the preservation of various human rights, including the right to life.

More specifically, the country has ratified the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), which decrees abolition of the death penalty by state parties.

Courts’ discretion

Currently, the law recognises circumstances under which the right to life can be limited, including imposition of the death penalty.

The Kenyan law also recognises the death penalty as a legal form of punishment within the statute books prescribed for capital offences, treason, murder and robbery with violence, among others.

While the law still stands, the discretion to impose the death sentence as ruled by the Supreme Court has been left to the pronouncements of the courts passing a sentence in the matter.

The Supreme Court ruling means there is no absolute case for the death penalty especially in an era or environment where protection of fundamental human rights cannot be ignored.

Although the law provides for the death sentence, section 211 of the Penal Code states that the death sentence shall not be passed on pregnant women.

“Where a woman convicted of an offence punishable with death is found to be pregnant, the sentence to be passed on her shall be a sentence of imprisonment for life instead of the sentence of death,” the law says.

In its ruling, the Supreme Court observed; “It is not in dispute that Article 26 (3) of the Constitution permits the deprivation of life within the confines of the law. We are unconvinced that the wording of that Article permits the mandatory death sentence.”

The top court went on to state that the pronouncement of a death sentence upon conviction is therefore permissible only if there has been a fair trial, which is a non-derogable right.

“A murder convict whose mitigation circumstances cannot be taken into account, due to the mandatory nature of the death sentence, cannot be said to have been accorded a fair hearing,” said the court. “It is indeed a colonial relic that has no place in Kenya today.”

Section 40 of the law that Mr Wandayi wants amended provides that it is treasonable to imagine, invent, devise or intend the death, maiming, wounding, imprisonment or restraint of the President.

The law also states that deposing by unlawful means of the President, the overthrow by unlawful means of the government are treasonable offences and “any person who is guilty of the offence shall be sentenced to death.”

Also targeted for repealing is section 204 of the Penal Code that says that any person convicted of murder shall be sentenced to death and sections 296 and 297- for cases of robbery and attempted robbery, respectively.

Sections 296 and 297 state that “if the offender is armed with any dangerous or offensive weapon or instrument, is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the assault, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.”

If Mr Wandayi succeeds in his endeavours, Kenya will join Zambia, the latest country to pass a similar law - in December last year.

As at December 2017, there were 3,998 murder cases pending before the High Courts in the country and 3,430 cases of robbery with violence cases before the magistrate’s courts.

On Wednesday, Solicitor-General Ken Ogeto argued that although the Constitution guarantees the right to life, “that right is not absolute, it is qualified”.

“You can be deprived of the right to life under a sentence passed by the court,” says Mr Ogeto.  

Mental anguish

Law experT Bob Mukangi, who was in the team of experts that drafted the 2010 constitution, says that the only way to lose right to life should be through the judicial pronouncements and not through the dictates of the law.

 Mr Mukangi says: “Our country is not in favour of the death sentence. So, why have it in our statute books?”

Mr Wandayi notes that the enforcement of the death penalty “amounts to cruel, inhumane and degrading treatment and punishment of the condemned person, … is irreversible and does not necessarily deter crime”.

“Stories of implementation of death sentences are not only unpalatable but also cause psychological trauma,” he says.

In Kenya, the law provides that when a person is sentenced to death, “he shall be hanged by the neck until he is dead”.

The death penalty in Kenya excludes minors and pregnant women as they can only be sentenced to life imprisonment, or in certain cases, be imprisoned at the President’s pleasure, when they have committed capital offences.

Efforts have previously been made by successive presidents to commute all death sentences on the basis that it would alleviate the “undue mental anguish and suffering, psychological trauma and anxiety” that come from “extended stays on death row”.

The last known execution happened 36 years ago but the courts have continued to sentence people to death, what Mr Wandayi says has led to adverse effects on death row inmates, who suffer effects including mental anguish and psychological torture.

“These inmates live each day waiting for the hangman, a most cruel and torturous life. The death penalty not only deprives the prisoner of all vestiges of human dignity, it’s the desecration of the individual as a human being and it is the annihilation of the very essence of human dignity,” notes Mr Wandayi. 

Article 133 of the Constitution grants the President power, upon the petition of any person, to exercise the power of mercy in line with the advice of the Power of Mercy Advisory Committee by, among others, granting a free or conditional pardon to a person convicted of an offence.

It also includes postponing the implementation of a punishment for a specified or indefinite period, or substituting it for a less severe form of punishment.

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