Kenya: Death penalty taskforce holds open forum as debate rages

NAIROBI, Kenya, Jul 31 – The Taskforce on the Review of the Mandatory Nature of the Death Penalty that was appointed by the Attorney General in March is on Tuesday due to hold an open forum on the controversial issue.

In the Supreme Court Ruling of December 14 last year, the Attorney General was given 12 months within which to come up with proposals aligned to the recommendations contained in the Supreme Court Ruling that abolished the mandatory nature of the death penalty in Section 204 of the Penal Code Act.

During the meeting, the meaning and implication of the Supreme Court ruling will be discussed together will all members of the taskforce.

These include the Judiciary, the Prisons and Correctional Services, the Office of the Director of Public Prosecutions, the National Assembly, Kenya National Commission on Human Rights, Kenya Law Reform Commission, among others.

Other than the legislative framework, the task force being chaired by Maryann Njau-Kimani will set up a framework to deal with rehearing of sentencing of persons on death row as directed by the Supreme Court in December last year.

In the landmark judgment, six judges of the Supreme Court found that the mandatory nature of the death sentence as provided for under Section 204 of the Penal Code is unconstitutional.

The court led by Chief Justice David Maraga, Deputy CJ Philomena Mwilu, Justices Jackton Ojwang’, Smokin Wanjala, Njoki Ndung’u and Isaac Lenaola, said a person facing the death sentence is most deserving to be heard in mitigation because of the finality of the sentence.

According to the judges, during mitigation, the offender’s version of events may be heavy with pathos necessitating the court to consider an aspect that may have been unclear during the trial process.

Source: CapitalFM, Simon Ndonga, July 31, 2018

Panel seeks substitution of death penalty with life imprisonment

The taskforce on the review of the mandatory death sentence is seeking the substitution of the penalty with life imprisonment with eligibility for parole.

According to Anne Okutoyi, a member of the task force representing the Kenya National Commission on Human Rights, judges will however have the discretion to impose the death sentence in cases where victims are vulnerable under a new legislative reform to be fronted by the Office of the Attorney General.

"The taskforce proposes life imprisonment with various terms of eligibility for parole depending on various (aggravating) circumstances and mitigating factors that an offender can present before a judicial officer," she said during a session with members of the media and other stakeholders on Tuesday.

Okutoyi noted that the new proposal which is among a raft of measures being fronted by the taskforce is in line with a Supreme Court ruling issued in December last year which found the death sentence to be unconstitutional to the extent of its mandatory nature.

The death sentence however remains enshrined in statutes leaving judges with discretion to impose it in aggravating cases.

"We propose that in serious cases - and we shall have clarity on what these serious cases shall be - then a judicial officer shall have the discretion to impose upon the death penalty," Okutoyi, member of the Maryann Njau-Kimani-led taskforce pointed out.

According to the taskforce which was gazetted by then Attorney General Githu Muigai on March 15, terms of parole would vary depending on the magnitude of the offence for which the convict is serving life imprisonment.

Under the current legal framework, those serving life-long detention can only be set free under the president's prerogative of mercy upon recommendation by the Power of Mercy Committee headed by the Attorney General.

Kenya commuted all death sentences to life imprisonment in 2009 prior to which no executions had been carried out with the exception of Hezekiah Ochuka and Pancras Okumu who were in 1987 hanged for treason following an attempt to overthrow the government.

The proposal by the Njau-Kimani-led taskforce to have the death sentence retained for judicial discretion in aggravating circumstances was however objected to by Amnesty International Kenya.

Amnesty instead suggested an overhaul of the corrective system as the country moves towards the abolishment of mandatory death sentencing.

The agency's Executive Director Irungu Houghton told Capital FM News on the sidelines of a media forum on the review of the mandatory death sentence that the penalty needed to be abolished in totality and replaced with a clear rehabilitative correctional system.

"The death penalty is among contentious issues globally, the others being euthanasia and abortion. Fortunately for us we are beginning to have a conversation on other means of sentencing," he said.

"What we (Amnesty) think should happen is that we need to look at our corrective and penal systems to make sure prisons are able to rehabilitate and correct violent offenders in a way that they do not pose harm to the society nor the State," Houghton explained.

He argued the death penalty was prone to abuse with the finality of the sentence making restitution of convicts in light of fresh evidence impossible.

"This sentence is open to misuse because there are cases where people have been hanged then you later realize they were not guilty of the offence," he said.

"This penalty is final, you cannot rehabilitate someone and you may not be able to have a retrial. We need to think about how we manage life imprisonment in a manner that keeps the society safe but provide an opportunity for rehabilitation," he outlined.

Houghton underscored the importance of the creation of a deterrent penalty to ensure an effective criminal justice system.

"It is critical that the State and the public are not rendered vulnerable by the removal of the death penalty," he stated.

The debate on death row was ignited in the recent weeks when High Court Judge, Jessie Lesiit sentenced a middle-aged lady to death after she was convicted of stabbing her boyfriend to death.

In her ruling on July 19, Lady Justice Lesiit said she had exercised judicial discretion in sentencing the former Lang'ata Women's Prison beauty queen Ruth Kamande to death saying she had shown no remorse during trial.

"In my view, the discretion to pass a sentence other than death in capital offences should only be exercised in deserving cases. I do not find this a deserving case and I think passing any other sentence than the one prescribed would turn the accused into a hero," she ruled.

Source: CapitalFM, July 31, 2018

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