BY SAM ALFAN.
It’s been three years since the Supreme Court of Kenya delivered the now famous Muruatetu judgment outlawing mandatory death sentence.
The Penal Code provides for a mandatory death penalty for the crimes of murder, robbery with violence, attempted robbery with violence, administering oath purportes to bind a person to commit a capital offence and treason.
But in the case by Francis Karioko Muruatetu and another v Republic (Muruatetu) the Supreme Court found that section 204 of the Penal Code prevented the courts from considering mitigating circumstances for purposes of sentencing, hence in violation to the right to fair trial and sentencing.
In reaching its verdict, the Supreme Court of Kenya relied on jurisprudence from other Commonwealth countries where the mandatory death penalty has been found to violate fundamental human rights.
Over the past decade, there has been a significant global movement away from the mandatory death penalty, with the international community recognising it as a cruel and inhuman punishment incompatible with fundamental human rights.
Kenya is the 13th country where the matter has been successfully argued.
In the judgement the Supreme Court specifically stated that “Section 204 of the Penal Code deprives the Court of the use of judicial discretion in a matter of life and death. Such law can only be regarded as harsh, unjust and unfair.
The Judges said 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 listens to mitigating circumstances but has, nonetheless, to impose a set sentence, the sentence imposed fails to conform to the tenets of fair trial that accrue to accused persons under Articles 25 of the Constitution which is an a absolute right.”
This is to mean that the mandatory death penalty is “out of sync with the progressive Bill of Rights” in Kenya’s 2010 Constitution (para. 64) and an affront to the rule of law. The Court also relied on global death penalty jurisprudence to find the mandatory death sentence “harsh, unjust and unfair” (para. 48).
Consequently, the Court mandated that all trial courts conduct a pre-sentencing hearing to determine whether the death penalty is deserved. The Court’s judgment could spell the end of the mandatory death penalty in Kenya after almost 120 years on the statute books.
The country’s top court further directed the Attorney General, the Director of Public Prosecutions and other relevant agencies to prepare a detailed professional review in the context of the Judgment and order, with a view to setting up a framework to deal with sentence re-hearing of cases similar to that of the petitioners.
The court suggested any necessary amendments, formulations and enactment of statute law be done to give effect to the judgment and on the parameters of what ought to constitute life imprisonment.
The court further added that for the avoidance of doubt, The Supreme Court order does not abolish the death sentence and it applies to all capital offences. The resentencing order applied to all offenders in circumstances similar to the petitioners (ie. persons convicted of capital offences).
