An MP has drafted a Bill whose enactment would result in the repeal of the death sentence from Kenya's laws and stop the accumulation of death-row prisoners.
This would be by removing death as a kind of punishment from the Penal Code via the Penal Code (Amendment) Bill and the Criminal Procedure Code (Amendment) Bill.
The Bill is by Oljororok MP John Waiganjo and is at the stage where the Justice and Legal Affairs Committee is supposed to scrutinise it prior to publication and formal introduction in the House.
Mr Waiganjo argues that having the death sentence in the law, contrary to the Bill of Rights in the Constitution, is not proper.
"Article 26 of the Constitution guarantees the right to life for all citizens and provides that this right may only be qualified by the Constitution or an Act of Parliament," said the MP in the Bill.
"The punishment is immoral, ineffective as a deterrent and has failed to adequately restore victims of crimes for which it is prescribed," he added.
Kenya has not executed a single death row convict since the hanging of Hezekiah Ochuka, the junior officer in the Kenya Air Force who headed the coup attempt in August 1982.
The number of death row convicts has however continued to accumulate since the provision is still in the statutes.
You can be subjected to the death sentence for robbery with violence or murder.
Robbery with violence can be as simple as using a knife to threaten someone before robbing them to shooting and injuring them before taking away their possessions.
The 2 draft Bills are understood to have caused intense debate at the committee's meeting last Tuesday, which was closed to the public, as a number of MPs in the team support the death sentence.
Kiharu MP Irungu Kang'ata, who is an advocate of the High Court, said the penalty acts as a deterrent and that "some offences are too grave and only the death sentence can assuage the loss."
He gave defilers and mass murderers as among the people who should be put to death for their crimes.
He argued that it is too expensive to keep prisoners serving life sentences and a poor state such as Kenya would be better off using that money to support orphans rather than murderers and robbers.
"Some offences should not attract death: such as robbery with violence where a victim doesn't die, treason, which is a political offence," he added.
Some members of the committee were also reported to be of the view that there needs to be mitigation allowed before the death sentence is imposed so that if a policeman kills in the line of duty, he can be imprisoned for life rather than be killed.
"WAITING TO DIE"
In prison, death row convicts do not work because "they are waiting to die" but because there have been no executions for 28 years, that wait is considered meaningless.
In 2009, then President Mwai Kibaki commuted the death sentences of more than 4,000 death row inmates to life sentences.
He said he was following the advice of a constitutional committee and asked Kenyans to engage in a national debate on the issue, implying therefore that the death penalty could be repealed.
In July 2010, the Court of Appeal declared unconstitutional the mandatory death sentence for murder.
Source: gbooza.com, June 20, 2015
To hang or not? House team divided over death sentence
Thousands of convicts with a date with the hangman are at the mercy of the National Assembly whose members are divided over whether they should face the noose or serve life imprisonment.
The Legal Affairs Committee is divided over the matter, contained in a Bill sponsored by Oljororok Member of Parliament John Waiganjo. While Waiganjo wants life sentence upheld, another group led by Kiharu MP Iringu Kang'ata wants the convicts hanged without further delay.
In his Bill, The Penal Code (Amendment) Bill, 2014, Waiganjo wants the provisions relating to the imposition of the death penalty upheld. The Oljororok MP is also seeking an amendment to the Criminal Procedure Code (CPC) to remove provisions that relate to the imposition of the death penalty.
The Bill seeks to repeal the section of the Code which provides for the right of a person sentenced to death to appeal. But Kang'ata and a majority of the committee members are pushing for the death penalty to be reinstated and the more than 1,050 convicts hanged without further delay. Yesterday, Kang'ata told People Weekend that his proposal has the support of the majority of the committee members.
"These are condemned people whom judges found guilty as charged and they, therefore, should suffer the consequences of their deeds," Kang'ata said. He says that some offences such as serial murder, rape and defilement are so grave that only the death sentence can assuage the loss.
According to Kang'ata, it would be absurd for a person convicted of terrorism offence to be committed to a life sentence and continue enjoying tax payer's resources.
"An eye for an eye, let convicts suffer the same fate they inflicted on their victims," Kang'ata said adding that majority of the MPs were in support of the position. Waiganjo, however, argues in his Bill that death punishment is immoral, ineffective as a deterrent and has failed to adequately restore victims of crimes for which it is prescribed.
"Article 26 of the Constitution guarantees the right to life for all citizens and provides that this right may only be qualified by the same Constitution or an Act of Parliament," Waiganjo writes.
The 1st-time lawmaker wants Section 24 of the Penal Code (Cap 63) which stipulates punishments which may be inflicted by a court amended. He further wants section 25 of the Bill repealed. The section reads that, "Where any person is sentenced to death, the form of the sentence shall be to the effect only that he is to suffer death in the manner authorised by law.
"Sentence of death shall not be pronounced on or recorded against any person convicted of an offence if it appears to the court that at the time when the offence was committed he was under the age of 18, but in lieu thereof, the court shall sentence such person to be detained at the President's pleasure, and in so sentenced he shall be liable to be detained in such place and under such conditions as the President may direct, and whilst so detained shall be deemed to be in legal custody."
"Again, we need to allow mitigation, death penalty should not be final, for instance, if a police kills on his line of duty, he can take life imprisonment, but grave acts, such as cold murder, should definitely attract death," Kang'ata opines.
The convicts had their fates reversed in 2009 when former President Mwai Kibaki commuted their death sentences to life imprisonment. Kibaki signalled intentions to abolish the death penalty altogether but he first called for a study to determine whether Kenya's mandatory death sentence for murder, armed robbery or treason actually deters crime.
Kenya is one of the Sub-Saharan countries that have made steps toward reducing executions or doing away with them. Others include Uganda, Tanzania, Mali and Nigeria. China has the most executions, at least 5,000 in 2008, according to a July report by the anti-death-penalty group Hands Off Cain.
China's highest court, which reviews all executions, recently called for the death penalty to be used less often. In the US, about 35 people are executed per year. By Kenyan law, armed robbery carries a mandatory death sentence - whether for bank robbers armed with submachine guns or someone using a stick to snatch a chicken.
Even though the death penalty has not been carried out since 1983, the population on death row kept expanding. In a landmark judgment, Kenya's Court of Appeal sitting in Nairobi on July 30, 2010 declared unconstitutional the application of a mandatory death sentence on all prisoners convicted of murder.
In their unanimous judgment, Court of Appeal judges ruled that the automatic nature of the death penalty in Kenya for murder violates the right to life and amounts to inhuman punishment, as it does not provide the individuals concerned with an opportunity to mitigate their death sentences.
As a result, hundreds of prisoners currently on death row in Kenya were given a reprieve. The Court of Appeal said that the same reasoning given in the judgment would apply to other offences having a mandatory death sentence, such as treason and robbery with violence (Section 296/2 Penal Code).
Source: mediamaxnetwork.co.ke, June 20, 2015
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