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Panel seeks substitution of death penalty with life imprisonment

According to Anne Okutoyi, a member of the task force will, however, have the discretion to impose the death sentence/COURTESY

NAIROBI, Kenya, Jul 31 – 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.

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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.

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“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.

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