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


7 Replies to “Kenya should consign death penalty to history”

  1. London is burning and you are whining about death sentences in Africa? Did the british police uphold Mark Duggan’s human rights or dont black subjects in the UK have the same rights criminal in Uganda and Tanzania need

  2.  Several US states apply the death penalty actively unlike Kenya where it has been in de facto suspension. So if you do not have the balls to take your advice to the Americans who need i more than Africa and only want to give your condescending lectures here, you can take your advice and shove it up your posterior.

  3. Well said Blackpower/Kamau. Dont see why this diplomat feels the need to assert his views on local issues. I think the western world ought to realise their influence and relevance in the world order are history.

  4. I happen to possess an anathema for most pieces of advice coming from these quarters and this happens to be one of them. I hold the view that death sentence is not the silver bullet  in eliminating violent crime but  we must differentiate between people who commit lesser crimes that attract life sentence and the murderers out there. The possibility that a murderer serving life stands a chance of getting freed based on clemency laws is spine chilling and eliminating that possibility through upholding this most extreme punishment would be highly welcome. As for Rob Macaire and his masters,please consider giving this advice to the states of Texas,Nevada,California,Arizona just to mention a few in the US,that still practice the Anglo-Americal Common law of capital punishment.

  5. Looks like Emperor Macaire is out of touch with the latest debate in his own country (i.e before the riots).  While you were busy patronising Kenyans sir, your country is debating whether to reinstate the capital punishment.  Due to serious breakdown of order and norms in your country, there have been several e-petitions calling for its reinstatement.  In fact, half of adults in Britain would be in favour of restoring the death
    penalty for cases of murder, according to a poll by respected pollster, YouGov.  40 percent of your country men however disagree.

    So Emperor Macaire, are you giving us the views of the people of your country or your own opinionated talk down?

  6. ” But people who try to blur the line and make excuses for suspects being murdered…”.

    Dear Mr  Macaire,

    I consider myself as an African, but from a tribe called Kenya.You are the rep. for your Gov.Therefore my understanding is that the views you are expressing  are your Gov. views too.Your country is mercilessly killing our brothers in the north from a tribe called Libya in the name of implementing a U.N resolution.Your Gov. ignored totally the perspective of our African leadership regarding the crises.Those people are getting fragmented day by day.Your powerful bombs are killings our brothers.Your interest may be to kill Gadhaffi since you consider him as a mass murderer.But the libyan will ever remain divided along tribal lines.The people your bombs have killed so far have not been tried in any court of law and they remain suspects.
    In your  article you are trying to be againaist in kenya what you are practising in Libya.Does it make sense?

  7. I look at Botswana, and how they once exerted the death penalty on Mariette Bosch and how Tokollo, the TKZ dude, fled Botswana after being wanted for causing a death as well. It may be inhuman for some, but it upheld the law there, and every time I visited, that was all people were discussing, and reminding me not to do something stupid there. In Botswana, if you ever heard that the police were looking for you, you would submit yourself at your earliest convenience to the nearest police station and you dealt with things then. You never let the police look for you, cause the consequences were bound to be dire. In winter, people would drive to the bank, jump out of the car and leave the engine running to keep the car warm, go into the bank and do their banking and come back and still find the car there. That’s until Zimbabwe went to hell and crime started rising in Botswana. My point is, in many cases, the fear of being executed for a crime does cause people to reconsider what they are about to do. I look at child rapists, violent thugs, people who swindle NGO and government money aimed at humanitarian and development efforts and I would imagine that the only language to get to them would be the death sentence. When the gun is pointed at you, in the name of a violent robbery, i figure whoever is doing the gun pointing has voided the guarantee on their life, and thus, they don’t deserve it. This is not aimed for chicken thieves and burglars who prefer not to interfere with people but for those who are willing to maim or take a life. If you violate someone’s life temporarily or permanently, you don’t deserve to be part of humanity. I think when a couple of people get hanged, criminals will sober up and reconsider how they go about their crimes. If someone was to violate your family member or friend in anyway, the most common reaction is anger and revenge, but it shouldn’t be. Let the state handle that side of business, but let there be a consequential system that actually works. Without consequences, no lessons are ever truly learnt. 

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