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Milimani Law Courts in Nairobi. CFM-FILE.

Kenya

ICJ Kenya urges government to abolish mandatory death penalty

NAIROBI, Kenya Oct 10-The International Commission of Jurists (ICJ)-Kenya has urged the government to abolish the death penalty and observe a moratorium on death sentences and executions as the world marks the Day against death penalty.

ICJ Chairman of the Kenyan Chapter Kelvin Mogeni pointed out that the government wass yet to implement a report by a task force formed in 2018 to review the legislative framework on the death penalty and other matters.

“Four years on there has not been significant policy and legislative progress made towards not only implementation of the Task force report findings but also formalizing the State’s commitment to abolish the death penalty,” noted Mogeni.

The taskforce was formed in December 2017 in line with the Supreme Court landmark judgment that declared the mandatory death sentence unconstitutional.

The Supreme Court delivered a ruling in the case of Francis Karioko Muruatetu & Another –vs– the Republic & Others 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 not in line with the constitution.

In 2018, former Attorney-General Githu Muigai appointed a 13-member task force tasked to create a report framework to deal with the re-hearing of the sentencing of persons on death row among other issues.

That task force reported that Kenya’s criminal justice system is defective, leading to a disproportionate­­­ number of poor or vulnerable people being handed the death penalty.

The task force, chaired by the Secretary of Justice and Constitutional Affairs Maryann Njau, also recommended re-sentencing of all offenders on death row as at the time of 2017 ruling on death penalty and all capital offenders whose sentence had been commuted to life imprisonment.

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“ICJ Kenya is conscious that a number of steps have been taken at the national level to abolish the death penalty including the commutation of the death sentences of all 2,747 prisoners on the nation’s death row being 2,655 men and 92 women who had been sentenced to death.Whilst ICJ Kenya lauds these steps, we are conscious that the death penalty is one which requires to be abolished not only in practice but also in law,”noted the ICJ Kenya Chairman.

Mogeni further lamented that the National Assembly is yet to push for legislative amendments consistent with the repeal of sections of the law that provide the death penalty sentence.

The task force, in its report, wanted the death penalty to be scrapped from Kenya’s law books, based on opinions, interviews with death row convicts and the factual reality that they encountered in prisons countrywide.

They urged Parliament to take the bold step of leading Kenya into a more just and humane future by abolishing the death penalty entirely.

“More specifically, the National Assembly is yet to repeal of the five sections of the Penal Code which provide for the death penalty as a sentence,” part of the statement read.

In a recent ruling by the supreme court in the famous Muruatetu case , a seven judge bench ruled that the case  did not outlaw the death penalty.

During its inaugural sitting 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.

Given this ruling, ICJ argues that there have been discrepancies in issuing sentences to convicts of robbery with violence and sexual offences.

“There still lacks harmonisation of the sentences meted out in capital offences particularly following the issuance of the Supreme Court guidelines limiting the application of the Francis Murutatetu decision to Murder cases only,”pointed Mogeni.

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Additionally, provision for legal aid for indigent persons on death row remains a challenge with minimal financial and human resources necessary to ensure legal assistance at all stages of the trial process.

Meanwhile they called on the government through its relevant agencies is yet to issue a formal moratorium on the application of the death penalty further to ratifying the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR).

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