Demise of Kenya’s mandatory death penalty
13 Apr 2018
A recent landmark decision by Kenya’s highest court, setting aside the mandatory death sentence for murder, is having an impact in that country. It has led to a new judgment in which three appeal judges ruled that the death penalty would also no longer be mandatory in cases of ‘robbery with violence’. As Carmel Rickard writes in her A Matter of Justice column on the Legalbrief site, the latest decision concerned a man convicted of stealing a cellphone after ‘beating up’ the owner: as a result of the appeal court’s decision that the mandatory death penalty should also not apply in such cases, his sentence was reduced from a death sentence to 10 years. This was the punishment that the court believed appropriate given all the circumstances but could not impose before the mandatory death penalty provision had been set aside.
When Peter Meja, alias ‘Uncle P’, was convicted for ‘robbery with violence’ in 2012 he could have had no idea that his sentence would be changed three times.
First, the trial court imposed a life sentence on him. Then, on appeal, this was changed to a death sentence. Luckily for Meja, however, when he went to court for a second appeal he got the timing right: it was heard soon after a landmark judgment by Kenya’s Supreme Court. That judgment declared the existing mandatory death sentence for murder to be unconstitutional. The appeal court judges have now held that, by analogy, the mandatory death sentence for crimes including ‘robbery with violence’ was also unconstitutional, and they were thus able to consider what they believed would be the most appropriate sentence for Uncle P.
The result? A 10-year sentence, starting from the date of his conviction.
The original trial court convicted Uncle P of being one of three men involved in beating up a woman and taking her cell phone from her. A police officer who chased him after the incident recovered a knife and the woman’s phone. His co-accused was a primary school student, later sentenced to eight months’ probation. Uncle P, on the other hand, was sentenced to life imprisonment.
He appealed to the high court but the two judges upheld his conviction. They also found that the offence of ‘robbery with violence’ fell under a section of the penal code that carried a mandatory death sentence, and they therefore substituted this for the original life sentence.
A second appeal is allowed in Kenya on issues of law only, and Uncle P was soon back in court, asking for his conviction to be reassessed on a number of grounds, including an allegation that his constitutional rights to a fair trial were violated.
The judges of the second appeal had no hesitation in upholding his conviction. As to sentence, all that he had said in mitigation was that he was his family’s sole breadwinner, and that ‘he was sorry’. The appeal judges were, however, amenable to reconsidering his sentence. They quoted a decision of the Supreme Court made at the end of 2017 in which that court said the mandatory death sentence provided for under the penal code was unconstitutional.
The Supreme Court said the penal code deprived the court of its judicial discretion ‘in a matter of life and death’. The court added, ‘Such law can only be regarded as harsh, unjust and unfair. The mandatory nature deprives the courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in appropriate cases.’ Where a court heard evidence in mitigation, but could only impose a pre-determined sentence, that sentence made the whole trial unfair and infringed the constitutional right to a fair trial.
The judges in Uncle P’s second appeal said the section under which he had been sentenced also made the death penalty mandatory. The criticisms of the mandatory death sentence for murder made by the Supreme Court applied equally to the section under which he was charged. ‘For this reason, we find it appropriate to interfere with the death penalty imposed on (him). In our view, given the circumstances of the offence, and the mitigation offered, a sentence of 10 years would be appropriate.’
The disparity in sentence – from the death penalty to 10 years – illustrates the validity of the Supreme Court’s criticism of the previous sentencing provisions. In particular, they were concerned that judges hearing a trial had virtually no judicial role once they had convicted an accused in a murder case. It would serve no purpose to provide evidence in mitigation since the court had to impose a prescribed sentence even where there might be circumstances that reduced the blameworthiness of the crime.
However, the Supreme Court stressed that their decision left the death penalty as a sentence that was constitutionally valid, although it might be challenged on another occasion.
The Supreme Court bench directed that their judgment be put before the Speakers of the national assembly and the senate, as well as Kenya’s law reform commission, with ‘a signal of the utmost urgency’ for changes in the penal code that would reflect the judgment’s ruling.
No executions have been carried out in Kenya for the past 30 years, and about 10 years ago the sentences of all death row prisoners were commuted to life imprisonment. Despite this, however, the courts have continued to impose the death sentence, mostly as part of the now-overturned mandatory provisions, and estimates put the number of death row prisoners as well over 4 000.
The Supreme Court said other convicted prisoners who wanted to challenge their death sentences should wait for guidelines from parliament once the law had been changed. However, Uncle P was just lucky: he had already launched his appeal before the Supreme Court decision overturning the mandatory death penalty. It was a two-prong appeal, and though his conviction was upheld, the court was in a position to overturn the mandatory penalty, thanks to the earlier Supreme Court decision, and impose the sentence it believed to be appropriate in all the circumstances.
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