Kenya should consign death penalty to history



When I was invited to speak at a conference on the death penalty in East Africa, by the International Committee of Jurists and the Foundation for Human Rights Initiative, I was expecting a fair measure of consensus.

After all, here in Kenya the death penalty hasn’t been applied for over 25 years;  the President has often commuted death sentences to life, including over 4000 in August 2009; and the Court of Appeal ruled last year that the mandatory death sentence for murder was unconstitutional.

Given commonality of legal systems among the countries of the region, and the moves that are underway by the Commonwealth Lawyers’ Association to lobby for abolition, I assumed in my remarks to the conference that the momentum was broadly towards full abolition, with the only debate being about the speed and tactics.

So I was surprised that there was a strong division of views at the gathering, with senior judges from Uganda and Tanzania, in particular, robustly defending the use of the death penalty.

As I said at the conference, people sometimes ask what right foreign diplomats have to pronounce on issues like the death penalty, which are internal matters for sovereign states.  Here, they also sometimes point out Britain’s historical baggage – “you guys gave us our capital punishment laws”.

Both those arguments raise important points.  Do we have a role in trying to persuade states to give up the death penalty?  Well, our Ministers have made very clear that we see it not just a right, but a moral obligation.  States are sovereign and take their own decisions.

But there is nothing wrong with us trying to persuade and advocate.  The historical point is interesting too:  it highlights that social and legal attitudes evolve positively over time:  when Britain abolished the death penalty in the 1960s, it was a hugely controversial step.  But nowadays, as more and more countries do the same, it becomes a little less controversial each time.

So the UK Government has a campaign to persuade states that have the death penalty on their books to cease applying it, and to move towards full abolition.  Where states do use the death penalty, we seek to engage them about how often it is applied, and about minimum legal standards (such as the way it is administered, and whether minors, pregnant women etc are subjected to it).  That doesn’t diminish our wish to see full abolition, but we try to mitigate the worst effects in the meantime.

Of course, numerous studies have shown that there is no conclusive evidence that having the death penalty deters violent criminals, or that getting rid of it makes crime worse in any way.  But the abolitionist argument goes further than that: even leaving aside practical arguments, the whole concept that the state can take life in this way runs against a human rights based belief in the dignity and sanctity of life.  “Eye for an eye” approaches to justice have little place in modern legal thinking.

I think there is a link here to extra-judicial killings, a problem that Kenya is sadly plagued by.  While the two things might seem to be polar opposites (one within the law and one outside it), it’s an unfortunate fact that a lot of people here see extra-judicial killings by the police as a sort of rough-and-ready death penalty.

The state takes the life of criminals (or suspected criminals, or people alleged to be criminals), only without the benefit of a trial and conviction.  I believe firmly that such behaviour is not only morally wrong, but actually deeply damaging to security in Kenya.

It makes the dynamic between policeman and criminal not one of law enforcement but a state of war.  No armed criminal is going to come quietly if they know that after arrest they may be shot anyway.  And by undermining the rule of law, and cheapening human life, such acts erode the foundations of a peaceful society.  Finally, of course, it is a short step from the police executing suspected dangerous criminals, to ‘hit squads’ that eliminate other citizens.

So let’s not hear any more false allegations that those who raise extra-judicial killings risk leaving the police defenceless.   Of course the police in any country have a right to use necessary and proportionate force in self-defence, or to defend others whose lives are under threat. In extremis this may include the use lethal force; that’s why they carry guns.  But people who try to blur the line and make excuses for suspects being murdered when they have been detained, or pose no immediate threat, are fundamentally wrong.

The values in Kenya’s new constitution give me hope that both illegal killings by the police, and also the continuation of the death penalty on the statute books, will be consigned to history as this country moves forward

Macaire is the British High Commissioner to Kenya.  This blog was first published on the FCO website


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