Why, in this age, is Kenya keeping the death sentence in its law books?

For some reason, I could never stand to watch the long-running but now apparently defunct television series, Prison Break, which used to be a favourite of my folks at home.

Whenever it came on, I switched off mentally or did other things. I never did like the idea of prison, even in its virtual reality version.

When asked about his brief experience in one such facility, the late Maasai warrior Stanley Oloitipitip answered that “prisons were built for men”. What he probably meant was that there is no running away from the fact that thousands spend substantial parts of their lives in jail.

That is where they lose all the rights and liberties which everyone else takes for granted. When you have no freedom to go where you want, eat what you wish, sleep when you feel like it and wake up when you are no longer sleepy, you are in a very sorry state. When you can no longer get any intimacy from your loved ones; that is when you actually understand the meaning of the phrase “fundamental rights”.

The loss of those rights is the greatest tragedy that can befall any normal human being. The only saving grace is that in some circumstances, that period wasted in prison is finite; you are supposed to be released when you pay for your crime.

(READ: Death row inmates seek Uhuru pardon)

Even when you are jailed for life, there is a chance that you may get a respite earlier than anyone expected either because your appeal succeeded, or because you successfully sought clemency from the only person who can grant it through the exercise of the “prerogative of mercy” — the President. This year, at least 3,364 such prisoners are in the process of doing just that — petitioning for a presidential pardon.

What I am saying is that even if you are jailed for life, there is still hope that you may become free once more, and hope is what gives life any meaning.

But suppose, just suppose, you have committed murder, treason or robbery with violence? These are capital offences for which, under the law, you should be executed.

In some countries, they hang the fellows, in others they use the electric chair or lethal drugs, while in others still, the poor sods are terminated in a fusillade of bullets.

But not in Kenya. If you are sentenced to death in this country, they do not kill you; they throw away the key to ensure you rot in jail. This is both cruel and inhumane in many ways.

It is said that the last people to be executed in Kenya were the 1982 coup attempt leaders Hezekiah Ochuka and Pancras Oteyo Okumu. Apparently, after this, neither former President Moi nor his two successors have had the heart to sign the orders necessary for execution to be carried out. This means that of the hundreds sentenced to death since then, none has been executed.

And yet the law remains in the books and judges have no choice but to impose the ultimate penalty. Who is guilty of keeping such a futile law in the statutes? How come even Parliament has never seen the need to abolish capital punishment?

There are reasons for these questions. One, the world over, especially in the liberal democracies of Europe, there is a growing revulsion to the death penalty. Indeed, proponents of the abolition of capital punishment describe it as both anachronistic and a total failure as a deterrent.

Countries that have it in their statute books, they argue, are not necessarily the safest to live in, and they include those that religiously enforce it. Even in America, they say, those states that strap their murderers to electric chairs may have higher crime rates than those that don’t.

The other argument is even more solid. In many parts of the world, there have been numerous instances of miscarriage of justice, and people have been executed for crimes they never committed, and once you execute someone, you can never bring him or her back to life.

That is obviously true. But then here is the crucial question for us in Kenya. Should we keep a law that we are reluctant to enforce or should we reduce the over-crowding on death-row by going at it with a will?

It is a devil of a dilemma, which is probably what stays the hands of our leaders. Some people will argue that a life for a life is good biblical teaching. But then there are those who believe capital punishment is totally barbaric. Who is right?

I do not know. But what is clear is that we in Kenya cannot live forever in a legal limbo: liberally dishing out death sentences and never once carrying them out. A debate on this issue is called for.

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