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On 21st July, 2023, the President of the Republic of Kenya, vide gazette notice Vol. CXXV—No. 168 commuted death sentences meted on persons in Kenya as at 21st November, 2022, to life sentences. In the same notice, the President also approved 37 applications made to the Advisory Committee on the Power of Mercy (Committee) pleading for absolution.
This presidential prerogative derives from the powers conferred on the President by Article 133 of the Constitution of Kenya and section 23 (1) of the Power of Mercy Act, 2011, which provides that the President shall, within 30 days of receipt of advice from the Committee, approve or reject their recommendations. The Committee is then obligated to notify the petitioner, in writing, of the President’s decision within 7 days. The Committee shall then cause the approved petitions to be published, in the Kenya Gazette, within 21 days of receipt of the President’s decision. The decision of the President for each petition is final.
Section 22 of the Power of Mercy Act, 2011, provides that the Committee shall contemplate upon certain considerations before making their decision including the age of the petitioner at the time of the commission of the offence; the circumstances surrounding the commission of the offence; whether the petitioner was a first time offender; the nature and seriousness of the offence; the length of period so far served by the petitioner; the personal circumstances of the petitioner at the time of making the petition, including mental and physical health and any disabilities; and so on.
Overlooked
There is a forgotten lot of persons serving indefinite prison terms – at the pleasure of the president – who have not been mentioned in the legal notice. Child offenders often fall into this category and a child of 16 years could be given such a sentence and 40 years later, still be in prison! Persons who committed capital offences and are serving life in prison do make petitions for compassionate release based on various grounds as elaborated under Section 22 of the Power of Mercy Act, 2011. Some of these petitioners are of advanced ages, critically ill/declining health, and/or have undergone tremendous reform and are thus ready to reenter society. The Power of Mercy procedure is a sensitive and lengthy process, and the petitioners have to be investigated to determine whether they are eligible under this program. However, most of them make petitions, are interviewed, but responses are not made to the petitioners as to why they were not successful. It should also be noted that the Committee’s decision is purely discretional but measures ought to be taken to ensure that their decisions are consistent, and that they serve the objects and purposes of the Power of Mercy Act, 2011.
Notice not a stay on death penalty
The said notice does not act as a stay on the death penalty. Courts still issue this sentence time and again. However, in recent times, there has been judicial activism in the Kenyan jurisprudence orchestrated and guided by abolitionist lawyers (advocates), civil society, and criminal law reformists. Article 26 (3) of the Constitution of Kenya provides that ‘a person shall not be deprived of life intentionally, except to the extent authorised by this Constitution or other written law’. This Constitutional provision upholds the death penalty in Kenya. In practice, that means imprisonment for the rest of your natural life due to the fact that no executions have been carried out in Kenya since Hezekiah Ochuka, Pancras Oteyo Okumu and two other masterminds of the 1982 coup d’état attempt were convicted of treason, sentenced to death, and subsequently hanged in July 1987.
Public opinion on the death penalty
Most legal practitioners both in the Bar and Bench (lawyers and judges) strongly maintain that the death penalty is an effective and adequate penalty which should be maintained in Kenyan statutes. A large portion of the community is also convinced that the death penalty is a proper penalty for capital offences. This belief that the death penalty is a satisfactory and justifiable penalty is based on the fallacy that death penalty acts as a deterrent to heinous criminal activities. On the contrary, it has been proven that the death penalty does not encumber/thwart crime, and more specifically, capital offences. In fact, states with the death penalty laws do not have lower crime, murder, or heinous offences rates than states without such laws. Overall, a lot of civic education needs to be conducted to disaffirming such views/opinions from amongst Kenyans.
Journey to abolitionism
On 25th July, 2023, Ghana joined a league of 29 out of 55 African countries that have joined the bandwagon to abolish the death penalty. Through a historic parliamentary action, the Ghanaian Parliament voted to amend their Criminal Offences Act to substitute their death penalty for life imprisonment, according to their parliamentary committee report. This is tremendous news for abolitionist advocates in Africa.
In Kenya, the journey to abolitionism is slow but progressive. Small reprieves in the form of such a legal notice by the President to commute the death penalty to life imprisonment illuminates a way for criminal justice system in Kenya, and acts as a beacon of hope for the persons who actually bear the brunt of being on the Kenyan death row. Complete abolition is not a distant dream but a looming actuality.
Find notice here http://kenyalaw.org/kenya_gazette/gazette/volume/Mjk2MQ–/Vol.CXXV-No.168/
By Anne Munyua (https://twitter.com/MurugiMunyua)
Executive Director
