Director of Public Prosecutions Keriako Tobiko has thrown his weight behind an application seeking to abolish the death sentence for capital offences.
He said Wednesday that sections of the penal code limiting judges to pass the mandatory death sentence in murder and robbery with violence cases should be changed to allow them more discretion.
“We are not saying the death penalty should be abolished but that it should not be mandatory for capital offences. It should allow the judge to decide if that sentence is appropriate or if there is an alternative depending on the circumstances,” said litigation counsel Njagi Nderitu during the hearing of a petition in the Supreme Court by two prisoners challenging the legality of the mandatory death sentence.
The two were convicted of murder in 2003 and sentenced to death but this was commuted to life imprisonment in 2009.
Mr Nderitu agreed with lawyer Fred Ngatia that Kenyan prisons are overcrowded, with over 6,000 prisoners on death row who would be serving various other jail terms if the death sentence was not mandatory.
Mr Ngatia, who was appointed by Chief Justice Willy Mutunga to represent the two prisoners, argued that the mandatory death sentence was inconsistent with the Constitution, which gives every person a right to life.
“Sentencing is a judicial process and part of the trial process. That is why the death penalty should not be mandatory. It should be up to the trial judge to decide the nature of punishment,” he said.
Supreme Court Judges Willy Mutunga, Kalpana Rawal, Jackton Ojwang, Mohammed Ibrahim, Njoki Ndungu and Smokin Wanjala said they would deliver the ruling on notice.