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Chief Justice Martha Koome. /JUDICIARY.

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Reprieve UK welcomes Kenya’s Supreme Court ruling on re-sentencing in death penalty

NAIROBI, Kenya July 8 –A charity based in the UK that uses strategic interventions to among others end the use of the death penalty globally has welcomed Monday’s judgment of the Supreme Court in Kenya on re-sentencing.

Winnie Syombua and Shirly Amayo, both fellows of Reprieve UK, said the ruling is a reprieve to inmates who are eligible for re-sentencing.

Reacting to the Supreme Court ruling in Kenya on the famous Muruatetu case, they said, “Some of the challenges that we have seen for instance in some courts when a person is done with the appeal and then file for resentencing, some courts were denying and saying that they do not have jurisdiction but now in this ruling, we’ve been told that you can actually withdraw the appeal first and then go ahead with resentencing and then you can proceed with the appeal, so that challenge has been mitigated with this judgement.”

Over the last few years, Reprieve has been supporting efforts towards ending the death penalty in Africa, most recently working on a re-sentencing project in Malawi.

They stated that Re-sentencing has been going on in a number of courts.

Syombua and Amayo have been able to gather jurisprudence that is consistent with the Monday ruling by the Supreme Court while leading a project on resentencing in Kenya. Due to the lack of Resentencing guidelines or clear structures for the resentencing process as well as civic education on the implication of the Muruatetu ruling, there has been a lot of confusion and discrepancy.

For instance, they said, there are a number of Courts that are dismissing resentencing cases and maintain that the death penalty is still a legal sentence and that the Muruatetu ruling is a judgment and it’s the judge’s discretion whether or not to apply it.

The judges ruled that the decision in the Muruatetu case did not outlaw the death penalty, which is still applicable as a discretionary maximum punishment.

The judges, however, reiterated that its decision in the case did not invalidate mandatory sentences or minimum sentences in the Penal Code, the Sexual Offences Act or any other statute.

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“It should be apparent from the foregoing that Muruatetu cannot be the authority for stating that all provisions of the law prescribing mandatory or minimum sentences are inconsistent with the Constitution,” the orders read by Chief Justice Martha Koome directed.

The seven-judge bench comprising CJ Koome, Deputy CJ Philomena Mwilu, Mohammed Ibrahim, Smokin Wanjala, Njoki Ndung’u, Isaac Lenaola and William Ouko asserted that the decision of Muruatetu only applied to sentences of murder under Section 203 and 204 of the Penal Code.

“Judges in some courts, we have gone to certain courts where judges have told us that they will not use resentencing in their courts for whatever reason because they still think that the penal code should be followed as deemed and the law is the law so the penal code does set out a sentence for the death penalty so that will always happen and so they will not revise any ruling or rather any sentence on death penalty because it exists in the statute but now the ruling today does give clarity,” Syombua said.

Until Monday when the Supreme Court ruling was issued they said it wasn’t clear which court should a resentencing application should be filed at and when; Is it after appeal or before appeal.

Reprieve launched the Kenya Resentencing Project over 18 months ago to support all individuals eligible for resentencing in Kenya following the success of the Malawi re-sentencing project, and legal reforms.

On Monday, the Supreme Court ruled that the Judiciary Sentencing Policy Guidelines should be revised in tandem with the new jurisprudence enunciated in Muruatetu.

“All offenders who have been subject to the mandatory death penalty and desire to be heard on sentence will be entitled to re-sentencing hearing,” the apex court said.

The Supreme Court initially delivered a ruling in the case of Francis Karioko Muruatetu & Another vs the Republic & Others on December 14, 2017 in which it made a finding that the mandatory nature of the death sentence as provided for under Section 204 of the Penal Code, with respect to murder cases, was unconstitutional.

The court directed the Attorney General, the Director of Public Prosecutions and other relevant agencies to develop a framework for dealing with the re-sentencing hearings of similar cases within 12 months of the Supreme Court’s decision.

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Before the Taskforce to implement the decision could finalise its work for consideration by the Supreme Court, courts below embarked on the interpretation of the Supreme Court’s decision leading to inconsistency, confusion, and lack of uniformity in the country’s sentencing practice.

Some of the resultant approaches adopted by courts included adoption of the judicial approach that all provisions of the law prescribing mandatory or minimum sentences are inconsistent with the Constitution.

Appellants whose sentences were confirmed by the High Court and the Court of Appeal have also returned to magistrates’ courts, where, without reference to the decisions of the two superior courts, have had those sentences revised.

The magistrate’s courts have in some instances, entertained applications for re-sentencing in murder cases, without jurisdiction.

According to Syombua and Amayo, “all actors in the judicial system, as well as prisoners, need clear guidelines on who is eligible for resentencing. In some cases, the Courts only allow resentencing applications for capital offenses like murder and robbery with violence while in other jurisdictions allow resentencing applications for sexual offenses.”

For example, In one of the cases, they said, the Court of Appeal extended the reasoning in the Muruatetu case to mandatory minimum sentences imposed by the Sexual Offences Act holding that there was no rational reason for not so extending under appropriate circumstances.

Some appellants whose appeals under various statutes prescribing mandatory or minimum sentences, that are pending in the High Court or Court of Appeal, have also had their sentences revised by the magistrate’s courts without disclosing the fact that pending appeals exist in Superior Courts.

Syombua and Amayo believe the Supreme Court ruling is “both timely and necessary” but have decried the confusion that the ruling brought about “because the CJ was very clear that the Muruatetu ruling would only apply to murder cases.”

“This is because the death penalty is handed to offenders in the categories of murder, robbery with violence and treason. In their opinion, these two other categories should benefit from the ruling,” they said.

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The Supreme Court has directed that in respect of other capital offenses such as treason, robbery with violence and attempted robbery with violence that a challenge on the constitutional validity of the mandatory death penalty should be properly filed, presented, and argued before the High Court or escalated to the Court of Appeal, if necessary, at which a similar outcome as that in the Muruatetu case may be reached.

To guide the courts in their sentencing practice, the Supreme Court directed that the Judiciary Sentencing Policy Guidelines to be revised in tandem with the new jurisprudence enunciated in the Muruatetu case.

All offenders who have been subject to the mandatory death penalty will be entitled to re-sentencing hearing.

In the re-sentencing hearings, the courts will be required to record the prosecution’s and the appellant’s submissions as well as those of the victims before deciding on suitable sentence.

Applications for re-sentencing arising from a trial before the High Court will only be entertained by the High Court, which has jurisdiction to do so and not subordinate courts.

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