Why was the death penalty abolished?

Death penalty

The death sentence as a preferred measure to punish capital offenders is one of the most canvassed legal concepts. 

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Hi Wakili,

I was watching a YouTube channel featuring a young family who lost their dad at the hands of a murderer. It turns out the culprit is a serial killer. My question is, why was the death penalty abolished in Kenya? Why do we allow murderers and paedophiles to walk free after serving jail time just to endanger society again?

Dear concerned citizen,

The right to life espoused in Article 26 (1) of the Constitution applies to all people, irrespective of who they are and what they do. Such life shall not be deprived of any person intentionally, except to the extent authorized by the Constitution or other written law. Life is therefore scared.

However, the legal fraternity, especially the one that plies its trade in the criminal justice system is constantly faced with situations where the issue of the death penalty continues to cause confusion. This death penalty discourse is mired in competing and sometimes conflicting jurisprudential opinions and positions. The legal reasoning upon which most conclusions and decisions are made in this arena is not universal.

The proponents of abolishing the death penalty find their arguments in Article 6 of the International Covenant on Civil and Political Rights (ICCPR), which states that every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life. Different jurisdictions and countries have justified their actions as herein enumerated.

When Spain adopted abolition in 1995, it alleged that the death penalty had no place in the general penal system of advanced and civilized societies. When the Constitutional Court of South Africa held the death penalty to be unconstitutional, it said, that the rights to life and dignity are the most important of all human rights and which must be demonstrated by the State in everything that it does, including the way it punishes criminals.

In some countries, the death penalty is not seen as the issue, but as the manner in which it is offered and imposed. Most raise the concern that it is discriminatorily applied. Others have argued that the death sentence as a mode of punishment hasn’t reduced the degree and nature of the crime that calls for its imposition.

Inhuman treatment

Lastly, arguments prevail that countries with the death penalty in their statutes have not carried out any executions for a considerably long time, yet those on death row continue to endure uncertainty, emotional distress and mental anguish. Besides, the death penalty is seen as an affront to freedom from cruel, inhuman and degrading treatment, fairness of the trial notwithstanding. 

Those who seek the sustenance of the death sentence argue that no country around the world should be coerced by international partners or nations to reform the law in favour of a prohibition. They consider it a matter of country sovereignty without importing the concept of human rights into the debate.

There are those who affirm that the death sentence deters crimes of such nature that attract it in the first place. This means that re-offending is reduced considerably. While others have argued that it is part of their religion. Such discourse is common in Islamic jurisdictions, which have Islamized the law, and apply qur’anic principles in delivering such sentences. 

The path that Kenya has taken regarding the legality of the death sentence is found in the decision of the Supreme Court in the Muruatetu versus the Republic of Kenya case. While determining the legality of the death penalty the Supreme Court found the mandatory death penalty to be unconstitutional and an abuse of the Bill of Rights.

Giving further guidelines on the application of the decision, which was precedential the Supreme Court declared that the decision of Muruatetu could only apply to sentences of murder under Sections 203 and 204 of the Penal Code (Cap 263).

These guidelines, it seems, only remove the mandatory aspect of the death sentence and limit its application on the death penalty in murder cases, which opens the windows for judges and magistrates to apply it to other offences that attract such capital punishment.

A similar trend can be read from the review of the matter in Khowiva versus the Republic, in Malawi, where the Supreme Court of Appeal reversed the original decision, that had made the death sentence unconstitutional, terming the decision an opinion of Justice (Retired) Dunstan Mwaungulu, and not of the court.

The court has since clarified that the unconstitutionality was the mandatory nature of the sentence rather than the sentence itself. The judges have the discretion to impose the death penalty in capital cases.

The death sentence as a preferred measure to punish capital offenders is one of the most canvassed legal concepts. Those who oppose or support provide potent legal arguments to differentiate their positions, while they converge on the sanctity of human life.

It is not clear, which life should the law protect more. The one taken away by an offender, or the offender’s? Remember two wrongs do not make a right, and as Mahatma Gandhi said, an eye for an eye will make the world blind. 

Eric Mukoya has over 17 years experience working in the social justice sector. He’s the executive director of Undugu Society of Kenya. Legal query? Email [email protected]

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