INTRODUCTION
The desirability of abolishing the death penalty to enhance and protect human rights has been emphasized by various human rights bodies at the global and regional levels, including the UN Human Rights Committee (HRC)Footnote 1 and the African Commission on Human and Peoples’ Rights (African Commission),Footnote 2 as well as many states that have actually abolished it. The HRC is of the view that “States parties that are not yet totally abolitionist should be on an irrevocable path towards complete eradication of the death penalty, de facto and de jure, in the foreseeable future”, as “[t]he death penalty cannot be reconciled with full respect for the right to life, and abolition of the death penalty is both desirable and necessary for the enhancement of human dignity and progressive development of human rights”.Footnote 3 State parties to the Second Optional Protocol to the International Covenant on Civil and Political Rights 1989 (ICCPR-OP2) also postulate “that abolition of the death penalty contributes to enhancement of human dignity and progressive development of human rights”.Footnote 4 Similarly, the African Commission recognizes that abolition is important to securing, among other rights, the rights to life, dignity and to be free from torture, and cruel, inhuman or degrading treatment.Footnote 5 In Africa, developing jurisprudence from the African Commission and national courts “strongly” suggests the desirability of abolishing the death penalty.Footnote 6 In fact, the desirability of its abolition is not only evident in the African system, as jurisprudence and developments in the other two developed human rights systems (the European and Inter-American systems) also speak to the desirability of its abolition.Footnote 7
For African countries that still apply the death penalty, the African Commission has emphasized that under no circumstances should its imposition be mandatory for any offence.Footnote 8 This is in line with the view of UN and other regional human rights bodies, which have found a mandatory death penalty (the automatic imposition of a death sentence upon conviction for a capital offence) to be harsh, as it does not allow for consideration of the circumstances of the offence or of the convicted person, and is thus cruel and degrading punishment.Footnote 9 The HRC, for example, has emphasized “that the automatic and mandatory imposition of the death penalty constitutes an arbitrary deprivation of life, in violation of article 6, paragraph 1, of the [International Covenant on Civil and Political Rights 1966 (ICCPR)], in circumstances where the death penalty is imposed without any possibility of taking into account the defendant's personal circumstances or the circumstances of the particular offence”.Footnote 10 This position has been highlighted in the HRC's recent general comment on article 6 of the ICCPR.Footnote 11 The mandatory death penalty is seen to be “out of sync with prevailing human rights norms”.Footnote 12 Hence, its mandatory application is increasingly being abandoned in African states that still retain the death penalty, with Kenya being the most recent after the issue had been in constitutional limbo from 2010 until 2017.
This article considers the 2017 decision of Kenya's Supreme Court of Appeal (SCA) in Muruatetu and Mwangi v Republic (Muruatetu)Footnote 13 that declared the mandatory death penalty to be unconstitutional, and the (potential) impact of that decision. The article first provides an overview of the status of the death penalty and of the mandatory death penalty in Africa and subsequently in Kenya, thus providing a contextual background against which the case should be understood and illustrating the decline in use of not just the death penalty but also the mandatory death penalty on the continent.
THE DEATH PENALTY IN AFRICA
This section does not seek to provide a comprehensive contextual background but rather an overview, with an emphasis on more recent aspects / developments regarding the current status of the death penalty in Africa, limitations on its use and its abolition. This is important in locating the Kenyan decision within evident trends and establishing its contribution to furthering developments regarding the death penalty, aimed at protecting the rights of those facing the death penalty, restricting its application and promoting its abolition.
Statistics on the status of the death penalty
Amnesty International (AI) reportsFootnote 14 that 2017 saw a decrease in the global use of the death penalty. The number of countries that have abolished the death penalty for all crimes increased to 106, compared to 104 in 2016.Footnote 15 The number of executions decreased by 4 per cent to 993 in 23 countries, compared to at least 1,032 in 23 countries in 2016; and the number of death sentences imposed dropped by 17 per cent to 2,591 in 53 countries, compared to 3,117 in 55 countries in 2016.Footnote 16
In Africa, many states are increasingly abandoning the practice of the death penalty. AI's statistics as at the end of 2017 indicate that: 20 African countries have abolished it for all crimes (Angola, Benin, Burundi, Cape Verde, Congo, Côte d'Ivoire, Djibouti, Gabon, Guinea, Guinea-Bissau, Madagascar, Mauritius, Mozambique, Namibia, Rwanda, São Tomé and Príncipe, Senegal, Seychelles, South Africa and Togo); 19 are considered abolitionist in practiceFootnote 17 (Algeria, Burkina Faso, Cameroon, Central African Republic, Eritrea, Ghana, Kenya, Liberia, Malawi, Mali, Mauritania, Morocco, Niger, Sierra Leone, Swaziland, Tanzania, Tunisia, Western Sahara and Zambia); and 16 are considered retentionistFootnote 18 (Botswana, Chad, Comoros, Democratic Republic of the Congo (DRC), Egypt, Equatorial Guinea, Ethiopia, Gambia, Lesotho, Libya, Nigeria, Somalia, South Sudan, Sudan, Uganda and Zimbabwe).Footnote 19 It should be noted that, because the African Commission's Working Group on Death Penalty and Extra-Judicial, Summary or Arbitrary Killings in Africa (Working Group)Footnote 20 uses different terminology, some states that AI classifies as retentionist (Comoros, DRC, Lesotho and Zimbabwe) because they retain the death penalty for ordinary crimes are classified by the Working Group as states that have not carried out an execution over the past ten years.Footnote 21
On executions, AI's statistics for 2017 indicate that, in north and sub-Saharan Africa, at least 63 people were executed in three countries, a decrease from at least 66 people in six countries the previous year.Footnote 22 The total number of death sentences imposed in north and sub-Saharan Africa was at least 1,350 in 20 countries, a drop from the 2016 figure of at least 1,424 in 20 countries.Footnote 23 The number of people known to be under a sentence of death in these African sub-regions was however higher in 2017: at least 4,357 in at least 22 countries (2,285 in Nigeria alone), compared to at least 3,506 people in at least 19 countries in 2016.Footnote 24 The Working Group reports that, during the first quarter of 2018, two death sentences were imposed in South Sudan and 13 executions were carried out (one in Botswana, one in Sudan and 11 in Egypt).Footnote 25
Regional efforts towards the abolition of the death penalty
The desirability of the non-use and abolition of the death penalty in Africa has been promoted for more than a decade. The African Commission, in 1999 and 2008 for instance, urged African states to place a moratorium on the death penalty.Footnote 26 In 2009, it then operationalized the Working Group's mandate to, inter alia, “develop a strategic plan(s) including a practical and legal framework on the abolition of the Death Penalty”.Footnote 27 Three regional African conferences have also been held on the death penalty (in 2009, 2010 and 2018), ending with declarations emphasizing the need to take steps towards its abolition on the continent.Footnote 28
In 2015, the African Commission adopted the draft Protocol to the African Charter on Human and Peoples’ Rights on the Abolition of the Death Penalty, which it forwarded to the African Union (AU) for formal adoption.Footnote 29 However, the AU Specialized Technical Committee on Legal Affairs was of the view that there was no legal basis for its adoption and therefore declined to consider the draft protocol.Footnote 30 The Working Group has, however, continued with sensitization, lobbying and recommendations for states to support its adoption.Footnote 31
Nevertheless, there have been additional notable steps towards abolition in Africa. For example, Benin abolished the death penalty in 2016, following a landmark decision by its Constitutional Court that found laws making provision for the death penalty to be void on the basis of the country's international human rights obligations,Footnote 32 and Guinea abolished it in 2017, following the adoption and entry into force of a new Code of Military Justice by the National Assembly of Guinea, which did not mention the death penalty.Footnote 33 Burkina Faso and Chad reportedly took steps in 2017 towards abolition “under new or proposed laws”; and in 2017, Gambia signed ICCPR-OP2 and declared in February 2018 “a moratorium on the application of the death penalty” in the country.Footnote 34 Also, as explained below, some African states that retain the death penalty have refrained from its mandatory use (in general or for murder). While some African states have reduced the number of capital offences, others have indicated their willingness to do so.Footnote 35
Furthermore, the African Commission in its general comment no 3 on the right to life emphasized the desirability of abolishing the death penalty in Africa, in line with African and global trends, and as required under international law.Footnote 36 Regarding moratoria on executions, the African Commission stated: “[s]tates with moratoria on the death penalty must take steps to formalize abolition in law, allowing no further executions”, prosecutors should “refrain from seeking the death penalty” and judges should “choose not to impose it”.Footnote 37 In states that are yet to abolish the death penalty, trials and convictions must meet the fair trial standards in article 7 of the African Charter on Human and Peoples’ Rights 1981 (African Charter); and failure “stringently” to meet “the highest standards of fairness” would render “the subsequent application of the death penalty … a violation of the right to life”.Footnote 38
Provisional measures to stay executions
International bodies have sought to use provisional measures to protect life, among other rights, in death penalty cases.Footnote 39 Accordingly, in 2016, the African Court on Human and Peoples’ Rights (African Court), while acting on its own initiative, unanimously issued provisional measures in 17 cases against Tanzania, requiring the state to refrain from carrying out the death penalty that had been imposed on the applicants, pending determination of the cases by the court.Footnote 40 The cases concerned individuals who had been sentenced to death but were challenging the fairness of their convictions. In 2017, the African Court unanimously ordered Ghana to refrain from carrying out the death penalty it had imposed on the applicant, pending the court's determination of the case.Footnote 41 The applicant was under a sentence of death and was challenging, inter alia, the mandatory nature of the death penalty on human rights grounds, in particular that its imposition without consideration of the relevant circumstances of the offender or offence violates the rights to life, a fair trial, a review of sentence, freedom from cruel, inhuman or degrading treatment or punishment and, by failing to give effect to rights in the African Charter, a consequential violation of the state's obligation in article 1 of the charter.Footnote 42 As at November 2018, the African Court is yet to issue its decision on the merits in the case, but has issued a provisional measures order stating that “the risk of execution of the death penalty will jeopardise the enjoyment of rights guaranteed under Articles 4, 5 and 7 of the [African] Charter, Articles 6(1), 7, 14(1) and 14(5) of the [ICCPR] and Articles 3 and 5 of the [the Universal Declaration of Human Rights 1948 (UDHR)]”.Footnote 43
As stated above, both Tanzania and Ghana are classified as “abolitionist in practice” and were / are thus expected to comply with the provisional measures orders. Ghana is still to report on its implementation of the order. Tanzania has, however, indicated unwillingness to comply with some of the provisional measure orders.Footnote 44 Tanzania's response is of concern, as it goes against the essence of provisional measures, which is to protect human rights and prevent irreparable harm. Non-compliance would also constitute a separate breach of its obligations to adhere to such measures.
Nevertheless, the African Court has shown its willingness to protect life in urgent cases of potential violations and irreparable harm being caused to those under a death sentence. The indication of willingness to comply with some of the provisional measures orders in death penalty cases is encouraging when compared to the African Commission's experience, where orders requesting a stay of execution until it had considered the communications fell on deaf ears, as the executions were carried out while the cases were still pending before it.Footnote 45 However, unwillingness to comply, even in the face of a commitment to comply with some of the measures, should not be condoned since the death penalty is a matter of life and death.
Decline in use of the mandatory death penalty
Worldwide, there have been trends towards the mandatory death penalty being recognised as unconstitutional and not in sync with human rights.Footnote 46 Use of the mandatory death penalty has reportedly been declining rapidly, due, among other things, to judicial challenges to its application, with various bodies (judicial and quasi-judicial) at UN and regional levels as well as national courts declaring it unconstitutional and a violation of human rights.Footnote 47 Since 2000, the mandatory death penalty “has been found unconstitutional and incompatible with human rights norms in at least ten Caribbean nations”.Footnote 48
In Africa, the mandatory death penalty is a colonial legacyFootnote 49 and, despite its use having steadily declined, it remains in parts of the continent. However, in line with global trends, the African Commission has stated that the death penalty should not be mandatory, regardless of the circumstances.Footnote 50
At a national level, African states are increasingly abandoning mandatory death sentences.Footnote 51 A “new wave of litigation”, particularly in eastern and southern Africa, has found it to be unconstitutional, leading it to be replaced with a discretionary death penalty scheme.Footnote 52 Currently, Botswana, Kenya, Lesotho, Malawi, Swaziland, Uganda, Zambia and Zimbabwe and are among the countries that have abolished the mandatory death penalty, either in general or for specific offences that previously carried a mandatory death sentence.Footnote 53 This resulted either from constitutional challenges, or constitutional or legislative amendments. In Ghana, the Supreme Court found the mandatory death penalty to be constitutional,Footnote 54 resulting in its challenge before the HRCFootnote 55 and, following Ghana's failure to comply with the HRC's decision,Footnote 56 before the African Court.Footnote 57 The HRC found Ghana's automatic and mandatory death penalty in the case to constitute a violation of the right to life.Footnote 58
In relation to constitutional challenges, the relevant cases from Malawi, Uganda and Kenya (before Muruatetu) have been discussed in detail elsewhere,Footnote 59 so are not discussed here beyond stating in a nutshell the findings of the respective courts. In 2005, the Constitutional Court of Uganda in Kigula declared the mandatory death penalty unconstitutional, a decision that was upheld by the Supreme Court in 2009, following an appeal by the Attorney General (AG).Footnote 60 The Supreme Court found that the mandatory death penalty deprived the trial court of the opportunity to consider mitigating factors and exercise sentencing discretion, and was thus a violation of, inter alia, the right to a fair trial.Footnote 61 In 2007, the High Court of Malawi in Kafantayeni also found the mandatory death penalty to be unconstitutional.Footnote 62 The court found that it violated the rights to life, a fair trial and not to be subjected to cruel and inhuman punishment (due to the lack of opportunity to consider mitigating factors), as well as violating the right of access to the courts due to the lack of an avenue for the defendant to appeal against the conviction and sentence).Footnote 63 Malawi's Supreme Court of Appeal confirmed the decision (with approval) in 2008 in Jacob.Footnote 64
The first constitutional amendment was seen in Swaziland in 2005, with a constitutional provision stating, “[t]he death penalty shall not be mandatory”.Footnote 65 Zimbabwe was next, with a constitutional reform in 2013 that abolished the mandatory death penalty, limiting the imposition of the death penalty to “murder committed in aggravating circumstances” and subject to judicial discretion.Footnote 66
An amendment to the Penal Code of Zambia resulted in the prohibition of the mandatory death penalty for murder, excluding “murder committed in the course of aggravated robbery with a firearm”.Footnote 67 Although the Penal Code appears to impose a mandatory death penalty for aggravated robbery with a firearm, there are exceptions, for example where evidence shows that “the accused person was not armed with a firearm” and “was not aware that any of the other persons involved in committing the offence was so armed” or “dissociated himself from the offence immediately on becoming so aware”.Footnote 68 A 2016 bill of rights referendum in Zambia to vote on a constitutional amendment that would have seen a general prohibition of the death penalty “where there are extenuating circumstances relating to the commission of the offence”Footnote 69 was unsuccessful.Footnote 70 A legislative amendment in Botswana saw the abolition of the mandatory death penalty for murder and treason where there are extenuating circumstances.Footnote 71 The Penal Code of Lesotho was also amended, inter alia to prohibit the mandatory death penalty for murder where there are extenuating circumstances.Footnote 72 Likewise, the Sexual Offences Act of Lesotho prohibits the mandatory death penalty for a sexual offence where the offender (the accused) is infected with HIV and “had knowledge or reasonable suspicion of the infection” at the time of committing the offence, where extenuating circumstances exist or where the individual circumstances of the accused or lawful intimate relations between the victim and the perpetrator dictate otherwise.Footnote 73
THE MANDATORY DEATH PENALTY IN KENYA: MURUATETU AND MWANGI v REPUBLIC
Contextual background
Although Kenya has not carried out any executions since 1987,Footnote 74 the mandatory death penalty has remained on its books. However, death sentences have been commuted to life imprisonment. For example, in 2009 all death sentences were commuted to life imprisonment and, in 2016, 2,747 death sentences were commuted to life imprisonment.Footnote 75 However, the courts have continued to impose the death penalty.Footnote 76 Recent statistics indicate that, in 2017, at least 21 death sentences were passed, a slight decrease from the 24 passed in 2016.Footnote 77
In 2015, Kenya was one of the countries in which bills aimed at abolishing the death penalty were proposed without success.Footnote 78 In 2016, Kenya abstained from voting for the UN General Assembly's resolution on a universal moratorium on the use of the death penalty.Footnote 79 Its abstention, arguably, casts doubt on the Kenyan government's willingness to formalize its informal moratorium on executions that has been in place for more than three decades. Following its second universal periodic review in 2015, Kenya “noted” recommendations from other states for it to formalize its moratorium and ratify the ICCPR-OP2, and “accepted” (and in other instances “noted”) calls for it to suspend the application of the death penalty and to abolish it.Footnote 80 However, it is still to implement the recommendations.
It is unclear whether the government's stance is influenced by the perceived unreadiness of the Kenyan public for abolition, as it previously explained in response to the HRC's recommendation that it consider abolishing the death penalty. While the government stated unequivocally “that the penalty is in conflict with the fundamental human right norms as embodied in international instruments of which Kenya is a party”, it indicated “that the Kenyan public is still not ready for [its] abolition but [that] the Government and the Kenya National Commission for Human Rights [have] intensified efforts of educating the public on the need to abolish it in conformity with the international standards and trends”.Footnote 81 It stated further that “[a]t this juncture, Kenya is unable to abolish the death penalty as the Kenyan public has overwhelmingly rejected the abolition of the death penalty for the most serious crimes”.Footnote 82 In response, the HRC expressed “regret” over the retention and use of the death penalty in Kenya and reiterated its recommendation that Kenya consider abolishing it, acceding to ICCPR-OP2 and intensifying awareness campaigns aimed at changing the public mindset regarding its retention.Footnote 83
There was consensus regarding the application of the mandatory death penalty before 2010; after 2010, there were divergent views on its application, following its invalidation in 2010 by the Kenyan Court of Appeal (CA) in Mutiso.Footnote 84 The CA held, inter alia, that the mandatory death penalty was “antithetical to the Constitutional provisions on protection against inhuman or degrading punishment or treatment and fair trial”.Footnote 85 Subsequently, some Kenyan courts have imposed a mandatory death penalty while others have imposed custodial sentences for capital offences.Footnote 86 This divergent position continued until 2013, when the CA held in Mwaura that the Mutiso decision was “per incuriam in so far as it purports to grant discretion in sentencing with regard to capital offences” and that section 204 of the Penal Code of Kenya, allowing for the death penalty, was phrased in mandatory terms due to its use of “shall”.Footnote 87 The CA added that Kenyans will decide through their representatives in Parliament when to “remove the death sentence from our statute books”.Footnote 88 Despite questioning the Mwaura decision, the lower courts were bound to follow it as the doctrine of precedent demands.Footnote 89
The year 2010 marked the dawn of a new and progressive constitutional era in Kenya. Hence, the Mwaura decision was problematic as it did not accord with the intention of the drafters of Kenya's new Constitution nor with Kenya's international human rights obligations, which became part of domestic law under Kenya's 2010 Constitution (the Constitution).Footnote 90 In 2016, the mandatory requirement was then written into the Sentencing Policy Guidelines of the Judiciary of Kenya, which provided: “[i]n the absence of law reform or the reversing of the decision in Joseph Njuguna Mwaura and Others v Republic, the court must impose the death sentence in respect to capital offences in accordance with the law”.Footnote 91 The position has now been clarified by the SCA, following its decision in Muruatetu, which rendered this guideline inapplicable.Footnote 92 The SCA also found that the mandatory death penalty was a “colonial relic that has no place in Kenya today”.Footnote 93
Facts and issues
The case concerned two petitioners who were sentenced to death for murder, as mandated by section 204 of the Kenyan Penal Code.Footnote 94 Their death sentence was later commuted to life imprisonment but they had already spent a significant amount of time (17 years) on death row.Footnote 95 They approached the SCA, where they argued that the mandatory death sentence under section 204 of the Penal Code and its subsequent commutation were both unconstitutional.Footnote 96 They argued that a mandatory death penalty violated the right to a fair trial. First, they argued that sentencing was part of the right to a fair trial under article 50(2) of the Constitution and that a legislative requirement for a pre-determined sentence denied the trial judge sentencing discretion, contrary to this right.Footnote 97 Secondly, that anyone who has been criminally tried is entitled under article 50(2)(q) of the Constitution to “appeal and seek a review from a higher court”, but that the right to a second appeal is limited to appeals against convictions (that is, one is not able to appeal or seek review of a death sentence from a higher court). Thus, if the first appellate court does not set aside the conviction, then the right to a fair hearing under article 50(2)(q) of the Constitution is breached, due to the mandatory nature of the death penalty.Footnote 98 It therefore followed, as they further argued, that its commutation to life imprisonment was invalid.Footnote 99 The petitioners requested that they be compensated for the 17 “agonizing” years on death row.Footnote 100 They argued that the SCA's declaration that the mandatory death penalty was unconstitutional and the resultant damages award should be applied “to all convicts suffering the same fate”.Footnote 101 They also argued that the SCA should overturn the CA's ruling that “the death penalty is grounded in the Constitution” on the basis that such a ruling is bad law.Footnote 102
The state agreed that the mandatory nature of the death penalty was unconstitutional, as it does not allow for the consideration of mitigating circumstances and other pre-sentencing policy and statutory requirements.Footnote 103 It also agreed that the case be sent back to the High Court for resentencing, taking into consideration the time that the petitioners had spent in prison.Footnote 104 The state however disagreed with the damages claim, on the basis that the petitioners’ conviction by the High Court had not been challenged and that a damages claim is a civil matter requiring a separate hearing.Footnote 105
A joint amici curiae submissionFootnote 106 also argued that a mandatory death penalty was unconstitutional, as it was at odds with “international law and customs” and did not accord with constitutional guarantees.Footnote 107 On the latter, it cited the right to be free from cruel, inhuman and degrading treatment (articles 29(f) and 25(a)), fair trial rights (articles 50(1) and (2) and 25(c)) and the principles of separation of power and independence of the judiciary (chapters 9, 10 and 11, and articles 159 and 160, respectively). It also argued that the subsequent commutation of the petitioners’ death sentence “did not affect their entitlement to challenge the constitutionality of the mandatory death sentence imposed upon them”, for the court to rule that “only a lawful sentence could be commuted”,Footnote 108 and that the petitioners were entitled to a remedy for the continued breach of their rights.Footnote 109
The AG also intervened as amicus curiae, arguing that the mandatory death penalty was unconstitutional, not at the time it was imposed on the petitioners nor in relation to it being cruel, inhuman and degrading, but rather because it violates the right to a fair trial and is incompatible with the Constitution.Footnote 110 The AG differed from the petitioners, state and other amici in arguing that the petitioners had no standing to challenge the constitutionality of the mandatory death penalty since, with reference to the previous constitution, it was “expressly legal and constitutional” at the time it was imposed on them.Footnote 111
The court, therefore, had to consider: whether a mandatory death penalty and indeterminate life sentence were unconstitutional; whether it could and should define parameters for a life sentence; and the remedies, if any, to which the petitioners were entitled.Footnote 112 The court did not deal with broader issues relating to constitutionality of the death sentence and violation of the right to life, on the basis that “they did not arise in [the] appeal”.Footnote 113 Concerning the right to life, it stated however that it was not convinced that the wording of article 26(3) of the Constitution (that permits the intentional deprivation of life if authorized by the Constitution or other written law) permits a mandatory death penalty.Footnote 114
Also, the court did not elaborate on whether the mandatory death penalty amounted to cruel, inhuman and degrading treatment and whether an indeterminate life sentence was a cruel, inhuman and degrading treatment or punishment, as raised by the amici and first petitioner, respectively.Footnote 115 However, it observed that “the imposition of the mandatory death sentence which denied the convicted person an opportunity to seek review from a higher Court amounted to inhuman treatment or punishment”.Footnote 116 It cited the holding in Mutiso that “section 204 of the Penal Code … is antithetical to the Constitutional provisions on protection against inhuman or degrading punishment or treatment”.Footnote 117 In the context of life sentences, it noted the European Court of Human Rights decision in Kafkaris, finding a reducible life sentence (de facto and de jure) not to be a violation of the prohibition of torture or inhuman or degrading treatment or punishment.Footnote 118
Unconstitutionality of the mandatory death penalty
The SCA found that the provision of a mandatory death penalty for murder in section 204 of the Penal Code of Kenya was “inconsistent with the Constitution and invalid”.Footnote 119 This was based on it finding that the mandatory death penalty was “out of sync” with the Constitution, specifically articles 25(c) (prohibiting limitation of the right to a fair trial), 27 (right to equality and freedom from discrimination), 28 (right to human dignity), 48 (right of access to justice), and 50(1) and (2)(q) (right to a fair trial).Footnote 120 It also found the mandatory death penalty to be in breach of the principle of the rule of law. It further found that section 204 of the Penal Code cannot be valid in the light of article 19(3)(a) of the Constitution confirming the inherent nature of the rights in the Bill of Rights and article 20(1) and (2) of the Constitution on the application of the Bill of Rights.Footnote 121
In addition, the court emphasized the importance of adopting a “generous and purposive” approach to interpreting the provisions in the Constitution that protect human rights, as it was of the view that it is through such an approach that “life and meaning” can be given to the constitutional bill of rights.Footnote 122 The court did not, however, elaborate on the specifics of the approach in the Kenyan context, beyond highlighting the supremacy of the Constitution.
As stated subsequently, the court drew in its decision from a number of significant cases from Africa and elsewhere that view a mandatory death sentence as a violation of relevant human rights and unconstitutional. It quoted these cases with approval and viewed them as having persuasive authority.Footnote 123
Violation of human rights
Right to a fair trial: The SCA elaborated on the nature of the right to a fair trial and whether it can be restricted. It held that the right is a “fundamental” right, “an important congruent element of fair trial”, is necessary and essential in the fair trial process and “is one of the cornerstones of a just and democratic society, without which the Rule of Law and public faith in the justice system would inevitably collapse”.Footnote 124 It is an “inalienable” right as stipulated in the UDHR and is provided for as an “absolute”, “non-derogable” right in the Constitution.Footnote 125 The right to a fair trial guaranteed in article 50(2) of the Constitution is listed under article 25 as one of the rights that, notwithstanding any other constitutional provision, “shall not be limited”.Footnote 126 Also, under article 50(1) of the Constitution, a fair hearing must be understood to connote “a hearing of both sides”.Footnote 127
In addition to this constitutional guarantee, the ICCPR guarantees regarding the right to a fair trial apply to Kenya, as a state party to this treaty.Footnote 128 Hence, for it to be valid, section 204 of the Penal Code “must be in accord with” the principles contained in the ICCPR and the Constitution. These principles are: “[f]irstly, the rights and fundamental freedoms belong to each individual. Secondly, the bill of rights applies to all law and binds all persons. Thirdly, all persons have inherent dignity which must be respected and protected. Fourthly, the State must ensure access to justice to all. Fifthly, every person is entitled to a fair hearing and lastly, the right to a fair trial is non-derogable.”Footnote 129
Other aspects of a fair trial include “mitigation” and the “right to appeal” or right to “apply for review by a higher Court as prescribed by law.”Footnote 130 Hence, as the court held, the application of the right extends to the sentencing phase of a trial, since the trial process does not end upon conviction of an accused.Footnote 131
The court observed that “mitigation” forms part of the trial process, as stipulated in sections 216 and 329 of Kenya's Criminal Procedure Code (CPC) and is therefore “an important facet of fair trial”.Footnote 132 This implies that failure to make provision for the consideration of mitigating factors would render a trial unfair.Footnote 133 Although sections 216 and 329 of the CPC “are couched in permissive terms”, the court held that, upon reading them, a court is undoubtedly required to consider mitigating evidence “in order to arrive at an appropriate sentence” and also, as has been echoed by the CA, “for futuristic endeavors such as when the appeal is placed before another body for clemency”.Footnote 134
Considering the above, the court held that it could not untangle the rationale for the mandatory nature of section 204 of the Penal Code, especially as a “person facing the death sentence is most deserving to be heard in mitigation because of the finality of the sentence”.Footnote 135 Section 204 the Penal Code was thus viewed to be problematic as it “is essentially saying to a convict … that he or she cannot be heard on why, in all the circumstances of his or her case, the death sentence should not be imposed on him or her, or that even if he or she is heard, it is only for the purposes of the record as at that time of mitigation because the court has to impose the death sentence nonetheless”.Footnote 136 The court thus held that, as the death penalty is a matter of life or death, judicial discretion is crucial, yet section 204 of the Penal Code deprives the court of its “legitimate jurisdiction to exercise discretion not to impose the death sentence in appropriate cases”.Footnote 137 It held that the mandatory nature of the death penalty is therefore in conflict with the tenets of the absolute right to a fair trial, guaranteed under article 25 of the Constitution, since a court can listen to mitigating factors but is nevertheless required to impose a death sentence.Footnote 138 Due to the possibility of the different culpability of murder convicts, in the absence of mitigation or judicial discretion in sentencing, the sentence could be “wholly disproportionate to the accused's criminal culpability”, with the “undesirable effect of ‘overpunishing’ the convict”.Footnote 139 To support its view, the court cited, with approval and viewing it as persuasive authority, jurisprudence from the Privy Council (Reyes) and US Supreme Court (Woodson) on the necessity of mitigation in the context of the death penalty for murder.Footnote 140
In relation to the right to appeal or review, which are facets of a fair trial as reflected in article 50(2)(q) of the Constitution, the court held that the mandatory death penalty violates article 50(2)(q), since an appeal in the context of the death penalty is limited to conviction only, that is, convicts can only appeal against their conviction and not the sentence.Footnote 141 A court that is considering an appeal is therefore deprived of the opportunity to consider the appropriateness of the sentence.Footnote 142 The lack of judicial discretion in sentencing therefore resulted in the court finding the trial and resultant sentence to be unfair, in breach of articles 50(1) and 2(q) of the Constitution.Footnote 143 It held that imposition of a death sentence can only be permissible if imposed after a “fair trial”, which is one that includes consideration of mitigating factors.Footnote 144
Right to dignity: The court was of the view that the mandatory death penalty for murder violates the right to dignity. The court did not define the right per se, but stated that it is an “inherent” right and that the court has to ensure its enjoyment by all persons.Footnote 145 Article 28 of the Constitution guarantees this right to everyone. This is on the basis of the lack of an opportunity to mitigate and lack of judicial discretion in sentencing, which result in convicts being treated “as an undifferentiated mass”, despite the fact that they could have differential culpability.Footnote 146 Such differential culpability can be addressed through the exercise of judicial discretion in sentencing, to eliminate the question of “a formal equal penalty for unequally wicked crimes and criminals”, which, as the court pointed out, “is not in keeping with the tenets of a fair trial”.Footnote 147 As held by the court, “dignity of the person is ignored if the death sentence, which is final and irrevocable is imposed without the individual having any chance to mitigate”.Footnote 148 Hence, the lack of judicial discretion in sentencing also resulted in the court finding the trial and resultant sentence to be unfair, in breach of the right to dignity.Footnote 149
Right to justice: As a reviewing higher court is not able to consider the appropriateness of a death sentence due to its mandatory nature, the court found that this also results in a violation of the right to justice.Footnote 150 This right is provided for in article 48 of the Constitution. The court found that, though the scope of this right is wide, justice must be administered in line with the principles stated in article 159 of the Constitution, which include non-delay and non-discrimination in the administration of justice. In this regard, the court held that access to justice and a fair hearing requires that individuals are able to “ventilate their disputes” before the courts. As access to justice is a facet of the right to a fair trial, an unfair trial implies denial of access to justice. It then concluded that “when a murder convict's sentence cannot be reviewed by a higher court he is denied access to justice which cannot be justified in light of Article 48 of the Constitution”.Footnote 151 The court, therefore, also concluded that the lack of judicial discretion in sentencing, resulting in the trial and resultant sentence being unfair, amounted to a breach of the right to justice.Footnote 152
Right to non-discrimination and equality: Article 27 of the Constitution guarantees everyone the right to equality and freedom from discrimination. The right to non-discrimination is also provided for in article 26 of the ICCPR, which applies to Kenya. The court held that, under section 204 of the Penal Code, a mandatory death penalty is discriminatory in nature, in that it “gives differential treatment to a convict under that Section, distinct from the kind of treatment accorded to a convict under a Section that does not impose a mandatory sentence”.Footnote 153 The court found that it is “unjustifiable discrimination and unfair” and “repugnant to the principle of equality before the law” for those facing lesser sentences to have an opportunity to be heard in mitigation, while those facing the death penalty do not have a similar opportunity due to the mandatory nature of the sentence.Footnote 154 It thus found section 204 of the Penal Code to be in breach of the right to equality and non-discrimination.Footnote 155 The court supported its view with reference to Ugandan case law (Kigula) on the mandatory death penalty being a breach of the right of equality before and under the law, which the SCA considered to be a “greatly” persuasive authority.Footnote 156
Respect for the rule of law
The court also found that the mandatory death penalty “runs counter to constitutional guarantees enshrining respect for the rule of law”.Footnote 157 This is because of the lack of an opportunity for the courts to consider the appropriateness of the death sentence compared with the circumstances of the offence and offender, as required by “due process”. It held that a procedure or law that results in the termination of life when applied “ought to be just, fair and reasonable”.Footnote 158
Separation of powers principle
As stated above, the petitioners and joint amici argued that the lack of judicial discretion in sentencing breached the principle of separation of powers, since a judge is compelled to impose a sentence that is “pre-determined by the Legislature”, “thus leaving it to Parliament to control sentences in all murder cases”.Footnote 159 The state agreed that sentencing was a judicial function and thus, as per the separation of powers doctrine, “the Legislature ought not encroach upon territory that constitutionally belongs to the Judiciary”.Footnote 160 Despite this concession by the state, the SCA merely noted these arguments and did not rule specifically on whether the mandatory death penalty violates the principle of separation of powers. It therefore missed the opportunity to develop jurisprudence on this question. However, the SCA highlighted its willingness to assess the constitutionality of laws passed by Parliament, as follows: “[w]hereas it is the duty of Parliament to make laws, it is the duty of this Court to evaluate, without fear or favour, whether the laws passed by Parliament contravene the Constitution”.Footnote 161 The court was also cautious not to cross the separation of powers line as seen from its consideration of life imprisonment as an alternative sentence.
The alternative sentence: Life imprisonment
The SCA also had to determine whether an indeterminate life sentence was unconstitutional and if it should set guidelines in relation to life sentences. Following the commutation of their death sentence, the petitioners were serving an indefinite life sentence, with no prospect of parole.Footnote 162 A consideration of questions relating to the alternative sentence of life imprisonment is important because, as observed by Dirk van Zyl Smit, “restriction of the death penalty can occur best if there is an open debate on alternatives to the death penalty” that is “informed by the same concern for human rights as the debate about the death penalty itself”.Footnote 163
It was thus disappointing that, on the first question, the court declined to make a determination, on the basis that the petitioners had “not sufficiently argued” the issue.Footnote 164 Hence, the court missed the opportunity to consider the alternative sentence of life imprisonment through a human rights lens as it had done with the mandatory death penalty. A related issue raised in the case by the amici was the unconstitutionality of section 46 of the Prisons Act, for excluding “prisoners serving life sentences from being considered for remission”.Footnote 165 As the issue had not been raised before, and considered by, the High Court and Court of Appeal,Footnote 166 the SCA could not consider the question (and cannot be faulted for not doing so), as it was not a court of first instance.
On the second question, the SCA drew from English law and jurisprudence from the European Court on indeterminate life sentence.Footnote 167 While it was clear from the jurisprudence that different categories of life sentence have in some instances been defined, the SCA observed that Kenyan law does not define a life sentence, resulting in the assumption that the sentence implies “the number of years of the prisoner's natural life, in that it ceases upon his or her death”.Footnote 168 With reference to the relevant provision on the rights of detained persons (article 51 of the Constitution), jurisprudence from the Kenyan High Court (Wangui and Hussein) and comparative foreign case law, the SCA observed that it is the task of the legislature and not the judiciary to determine what amounts to a life sentence, ie whether it is served throughout one's natural life or if a specific term of years is to be served before consideration of parole.Footnote 169 However, following its consideration of the objectives of sentences (retribution, deterrence, rehabilitation, restorative justice, community protection and enunciation) and placing specific emphasis on rehabilitation, the court held that “a life sentence should not necessarily mean the natural life of the prisoner; it could mean a certain minimum or maximum time to be set by the relevant judicial officer along established parameters of criminal responsibility, retribution, rehabilitation and recidivism”.Footnote 170 The court was also persuaded by a similar position in comparative jurisprudence (which it found to be “compelling”) on indeterminate life sentences.Footnote 171 It also considered article 10(3) of the ICCPR, which states in part that “[t]he penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation”.Footnote 172 As a state party to the ICCPR, Kenya has an obligation to ensure it complies with its obligations under article 10(3) of the ICCPR, which now forms part of domestic law in line with article 2(6) of the Constitution. Apparently, the court viewed indeterminate life imprisonment as failing to meet the objective of reformation or rehabilitation.
As there was a lacuna in the Kenyan legal framework on what constitutes a life sentence, and considering that it was the legislature's task to put such framework in place, the court then recommended that the “Attorney General and Parliament commence an enquiry and develop legislation on the definition of ‘what constitutes a life sentence’; this may include a minimum number of years to be served before a prisoner is considered for parole or remission, or provision for prisoners under specific circumstances to serve whole life sentences. This will be in tandem with the objectives of sentencing.”Footnote 173
The court was of the view that the lack of such legislation would imply the country's non-compliance with article 2(6) of the Constitution, which makes ratified treaties or conventions part of Kenyan Law.Footnote 174 Put differently, such legislation would ensure compliance with, for instance, article 10(3) of the ICCPR.
Remedies
Upon finding the mandatory death penalty to be unconstitutional, the SCA had to consider “[w]hat remedies, if any, accrue to the petitioners”.Footnote 175 The petitioners had argued that the court should order “sentencing”, as an order of “re-sentencing” would be unfair since the unconstitutionality of the mandatory death penalty implied that the petitioners’ 17 years of imprisonment on death row was illegal.Footnote 176 While the amici supported a sentencing hearing by the High Court, the AG was against a sentencing order on the basis that the petitioners could seek “pardon, substitution or remission of punishment under Article 133 of the Constitution”, and the state thought it was “premature and un-procedural” to award damages without first having a re-hearing.Footnote 177
The SCA held that, as the petitioners’ trial was unfair, thus violating their right to a fair trial, they deserved a remedy.Footnote 178 In determining an appropriate remedy, the court sought guidance from comparative case law of the Privy Council, Supreme Court of Uganda and Constitutional Court of Malawi as well as the Kenyan Court of Appeal (as persuasive authority). These showed that the best remedial practice is remittance of the case to the High Court for it, after considering mitigating submissions, to determine an appropriate sentence.Footnote 179 It ordered that the “sentencing re-hearing” be done “on a priority basis, and in conformity with” the SCA judgment.Footnote 180 The SCA clarified that this remedy (“sentencing re-hearing”) was applicable only to the two petitioners before it and that those with similar cases should “await appropriate guidelines” that would address their situation.Footnote 181 In this regard, it directed the AG “to urgently set up a framework to deal with sentence re-hearing of cases relating to the mandatory nature of the death sentence - which is similar to that of the petitioners in this case”.Footnote 182 The court's final order in this regard is directed to the AG, the director of public prosecutions and other relevant agencies, who are required to “prepare a detailed professional review in the context of this Judgment and Order made with a view to setting up a framework to deal with sentence re-hearing [of] cases similar to that of the petitioners herein”.Footnote 183 It further placed a reporting obligation on the AG, “to give progress report” to the SCA on these matters.Footnote 184
Impact
The SCA's decision has both legal and social implications. The death penalty remains a valid punishment under Kenyan law. As the court stated, the unconstitutionality of a mandatory death penalty “does not disturb the validity of the death sentence as contemplated under Article 26(3) of the Constitution”.Footnote 185 The death penalty remains applicable “as a discretionary maximum punishment”.Footnote 186 It cannot therefore be imposed as a mandatory punishment for murder, as mitigating circumstances must be considered in order to establish an appropriate sentence in any specific case.
The decision has an impact on legislation, as it invalidates section 204 of the Penal Code as well as any other legislative provision that allows for a mandatory death penalty or an indeterminate life sentence. Accordingly, the court ordered that the “judgment be placed before the Speakers of the National Assembly and the Senate, the Attorney-General, and the Kenya Law Reform Commission, attended with a signal of the utmost urgency, for any necessary amendments, formulation and enactment of statute law, to give effect to this judgment on the mandatory nature of the death sentence and the parameters of what ought [to] constitute life imprisonment”.Footnote 187
Another legal effect of declaring the mandatory death penalty unconstitutional is the non-applicability of the Sentencing Policy Guidelines published by the Kenyan judiciary in 2016 that confirmed the mandatory death penalty.Footnote 188 In their place, in relation to mitigating circumstances during “a re-hearing sentence for the conviction of a murder charge”, the court provided the following criteria: “(a) age of the offender; (b) being a first offender; (c) whether the offender pleaded guilty; (d) character and record of the offender; (e) commission of the offence in response to gender-based violence; (f) remorsefulness of the offender; (g) the possibility of reform and social re-adaptation of the offender; (h) any other factor that the Court considers relevant.”Footnote 189
The application of these guidelines is context-sensitive, as they are “advisory and not mandatory” and do not replace judicial discretion.Footnote 190 They are aimed at “promoting consistency and transparency in sentencing hearings” and “promoting public understanding of the sentencing process”.Footnote 191 The setting out of guidelines would also prevent a lacuna in the law after the mandatory death penalty had been declared unconstitutional. Having clear guidelines would also help address human rights concerns around fairness in the discretionary application of the death penalty. However, if the guidelines are not followed, inconsistencies in the application of the discretionary death penalty cannot be avoided, resulting in challenges relating to equal treatment and equality before the law. Also, if procedural safeguards relating to a fair trial are not adhered to, most of the human rights concerns with a mandatory death penalty would also be present with a discretionary death penalty.
A significant development on the impact of the decision occurred on 22 March 2018, when the Court of Appeal, with reference to Muruatetu, found the mandatory death penalty for robbery with violence to be unconstitutional.Footnote 192 This was in Meja, where the appellant had been convicted of robbery with violence and subsequently sentenced to death, since “the offence of robbery with violence under section 296(2) of the Penal Code carries a mandatory death sentence”.Footnote 193 The appellant launched his appeal against his conviction and sentence before the mandatory death penalty for murder had been ruled unconstitutional. As a result, he did not have to wait for guidelines to be put in place (as the SCA had ordered in Muruatetu) in order to challenge the death sentence imposed on him. The Court of Appeal held that, because of the similarity between sections 204 and 296(2) of the Penal Code, “the arguments in the Muruatetu decision can be extended to cases of robbery with violence under section 296(2)”.Footnote 194 The court also cited its decision in Kittiny v Republic Footnote 195 where it applied the Muruatetu decision, holding that the SCA's decision “particularly in paragraph 69 applies mutatis mutandis to section 296(2) and 297(2) of the Penal Code”, rendering the death sentence under section 296(2) and 297(2) of the Penal Code “a discretionary maximum punishment”, and that “[t]o the extent that section 296(2) and 297(2) of the Penal Code provides for mandatory death sentence the sections are inconsistent with [the] Constitution.”Footnote 196 While upholding the appellant's conviction, the court then found it appropriate to substitute his death sentence with a sentence of ten years’ imprisonment, with effect from the date of his conviction.Footnote 197
Generally, this decision can be seen as a step towards the abolition of the death penalty in Kenya. However, whether it has the effect of not only fortifying debate on its abolition but leading to its abolition in the near future remains to be seen. While some have viewed the decision as “evidence of the Kenyan unwillingness to support the death penalty”Footnote 198 or “a very strong signal … that there is need for Kenya to consider the legal abolition of the death penalty”,Footnote 199 the government has also, as established previously, shown an unwillingness to take the death penalty abolition debate or moratorium formalization any further. Moreover, it has recently been reported that a law to make illegal hunting of wildlife a capital offence in Kenya will be fast-tracked.Footnote 200 Nonetheless, in the years to come, a possible reduction in the number of death sentences passed for murder will be evident, as courts are no longer compelled to impose the death sentence for every murder or robbery with violence conviction, assuming the courts adopt a flexible approach to the exercise of judicial discretion that is case and context specific. In addition, once a sentence re-hearing framework is in place and is effectively applied to cases similar to that of the petitioners, commutation of death sentences during this process would imply a reduction in the number of prisoners on death row, assuming that the number of death sentences that are subsequently passed does not outweigh the number of commutations.
CONCLUSION
There has been a decline, globally and in Africa, in the use of not just the death penalty but also the mandatory death penalty. When one looks at the respective judicial decisions declaring a mandatory death penalty unconstitutional, there seems to be a transnational judicial dialogue on the issue, as it is evident that international and (foreign) domestic developments influenced the courts’ considerations. The decisions refer to the developments, indicating in some cases (like Muruatetu) that these developments are persuasive authority.
Kenya's SCA decision in Muruatetu is significant as it is in sync with trends in Africa and elsewhere on the unconstitutionality of the mandatory death penalty. The “emerging global consensus”, in relation to murder for example, is to the effect that “not all murders are equally heinous and deserving of death, that the right to a fair trial includes a right to a sentencing hearing, and that a disproportionately harsh sentence is cruel and degrading punishment”.Footnote 201 The SCA's decision reinforces this global consensus and emphasizes the importance of judicial discretion in sentencing, especially in the death penalty context. In relation to the death penalty in general, the decision is in line with the view of the African Commission as well as its regional counterparts on the restriction of the use of the death penalty. The court can however not be criticized for not ruling on the constitutionality of the death penalty itself, as that was not part of the appeal. The challenge to the mandatory death penalty has a “much larger” goal: “to end the death penalty worldwide by fundamentally making it more difficult for prisoners to be placed on death row”.Footnote 202 The SCA's decision has thus been hailed as “a significant step towards complete abolition” of the death penalty.Footnote 203 The court however missed an opportunity to make a more substantive ruling on the mandatory death penalty in relation to the prohibition of cruel, inhuman and degrading treatment and the right to life. Nevertheless, the case will serve as a lesson for other African countries that retain the mandatory death penalty. Also, as observed in the previous section, the decision has already had a noteworthy impact at the domestic (Kenyan) level in relation to the mandatory death penalty for robbery with violence.
Bringing a challenge to the unconstitutionality of this sentence should however be strategic and not rushed. As noted by the SCA, the success of Muruatetu was also due to its timing.Footnote 204 It should also be emphasized that the discretionary application of the death penalty does not eliminate human rights concerns surrounding its application. An even greater challenge following the invalidation of the mandatory death penalty is ensuring consistency in its discretionary application as well as respect for the right to a fair trial and other human rights, including rights to dignity, equality and non-discrimination.
