Ending Capital Punishment: MPs Advocate for Abolishing the Death Penalty
If the proposed amendments to the Penal Code Act become law. Death sentences imposed by courts could be substituted with life imprisonment in the coming days.
The Penal Code (Amendment) Bill 2023, introduced by National Assembly minority leader Opiyo Wandayi. Seeks to remove from the country’s statute books. The imposition of the death penalty against capital offenders convicted by courts of competent jurisdiction.
The Bill is presently undergoing pre-publication review by the Justice and Legal Affairs Committee (JLAC) of the National Assembly.
Mr. Wandayi stated before JLAC on Thursday of last week that the Bill seeks to expunge all instances of the phrase “sentenced to death” and replace them with “life imprisonment.”
The bill focuses on provisions 40 (3), 60, 204, 296 (2), and 297 (2) of the existing law. The legislator has also proposed amendments to the Prisons Act, the Legal Aid Act. And the Preservation of Public Security Act in the Bills before the JLAC, which is chaired by George Murugara of the Tharaka party. According to him, the revisions will bring the laws in line with the Constitution, which protects the right to life.
Constitution
Kenya has ratified the protocol to the international covenant on Civil and political rights. That requires all state parties to abolish the death penalty. Mr. Wandayi told the committee that, as a state party, Kenya has no alternative but to reform its laws to comply with the constitution.
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Except for Kirinyaga Woman Representative Jane Njeri, every committee member supported Mr. Wandayi’s proposals. Only 280 death row inmates have been executed in Kenya. “I do have my reservations about the proposal to abolish the death penalty,” stated Ms. Njeri.
“We must institutionalize and implement the death penalty. People who embezzle public resources should be executed by hanging. We only need to provide a single example of a person. I believe that actions should have consequences and equilibrium,” she added.
Mr. Wandayi told the committee that without the right to life. It is impossible to enjoy other human rights “since the right to life is the foundation for the enjoyment of other human rights.”
Section 204 of the Penal Code, which Mr. Wandayi wants repealed, states that anyone convicted of homicide is sentenced to death, as are sections 296 and 297- for robbery and attempted robbery. Mr. Wandayi desires the repeal of Section 59 of the Prisons Act, which defines the method of execution for those sentenced to death.
He told the committee, “Since I am proposing the abolition of the death penalty, there is no need to specify how those sentenced to death should be hung until they die.” He intends to amend Section 43 of the Legal Aid Act by removing Subsection 4.
Mr. Wandayi also desires that subsection (2)(a) of section 7 of the Preservation of Public Security Act be deleted, as it allows for the promulgation of regulations for the imposition of the death penalty, among other things.
According to the Kenya National Bureau of Statistics (KNBS), a total of 6,058 prisoners have been sentenced to death since 2011, including former police officer Fredrick Leliman, who is on death row for the murder of advocate Willy Kimani, and two others.
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The reasoning and factors underlying the death penalty cannot sustain a rigorous examination; therefore, the death penalty should be eliminated from our legal system. In any case, Kenya appears to be a death penalty reservist state, according to the Ugunja lawmaker.
While the death penalty is still a mandatory punishment for capital crimes under the law, the last confirmed execution occurred in 1986 and involved two former military men: Hezekiah Ochuka and Pancras Oteyo.
Their execution resulted from their roles in the failed rebellion of 1982, an act of treason punishable by death.
There has been an informal moratorium on executions since then. In August 2009, former President Mwai Kibaki commuted the sentences of approximately 4,000 death row inmates to life imprisonment. In October 2016, former President Uhuru Kenyatta commuted all death sentences to life imprisonment, removing 2,747 offenders from death row.
Mr. Wandayi argues that to support the death penalty is to teach that violence and killing are acceptable means of dealing with serious crimes, observing that the use of the death penalty only lowers “our government to the mentality of the murderer itself.”
His proposed changes are informed by the Supreme Court’s December 14, 2017 ruling in Francis Karioko Muruatetu and Others v. Republic, which effectively resolved the death penalty debate.
Supreme Court
The Supreme Court ruled that the mandatory nature of the death penalty used by courts to impose the sentence as required by law was unconstitutional.
“The death penalty as specified in Section 204 of the Penal Code is declared unconstitutional.” “For the avoidance of doubt, this order does not affect the constitutionality of the death penalty under Article 26 (3) of the Constitution,” ruled the Supreme Court.
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This implies that the courts are no longer required to impose death sentences for crimes that originally merited capital punishment. Before the adoption of the new constitution on August 27, 2010.
As of December 2017, there were 3,998 pending homicide cases in the country’s High Court stations. And 3,430 pending robbery with violence cases in the Magistrates Courts.
Former Solicitor General Ken Ogeto argues that although the Constitution guarantees the right to life, “that right is not absolute, it is qualified.” According to Mr. Ogeto, a court sentence can deprive an individual of the right to life.
Mr. Bob Mkangi, a law expert who was part of the team that drafted the 2010 constitution. Believes that the only way to lose the right to life is through judicial pronouncements. Not through the dictates of the law.
“Our nation does not support the death penalty, so why does it exist in our laws?” Mr. Mkangi marvels.
Ending Capital Punishment: MPs Advocate for Abolishing the Death Penalty
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