President Mwai Kibaki’s decision to save 4,000 death row convicts in Kenya from the hangman has left legal experts and families of victims wondering whether the inmates should be made to pay restitution.
They argue that since the killers have not been hanged, and their upkeep is shouldered by taxpayers who may have suffered from their crimes, it is only fair that the law address their plight.
It takes Sh2 million a day of Kenyan taxpayers’ money to sustain those convicted of murder or violent robbery.
One of every seven shillings allocated to the Prisons Department goes to feed, house and care for them, which amounts to Sh650 million, based on the 2007/2008 Budget, Prisons sources say.
“I understand how the (families of the) victims feel and the burden of sustaining the murderer,” said Nancy Baraza, the vice-chairperson of the Kenya Law Reform Commission. “Although I don’t think money can pay for a life, if it can be a relief, then it is important that as a country we look into the issue (of compensation).” The Law Society of Kenya feels the time is ripe for Kenya to discuss the issue of restitution.
“We need some serious discussion (about it). It is food for thought,” said LSK chairman Okong’o Omogeni. “The buck stops with the President; he should let them be hanged. There should be retribution. If you kill you risk being killed. I support the death penalty.”
The most recent police figures indicate 1, 261 murders were committed in 2007. According to the Kenya National Commission on Human Rights (KNCHR), about 750 people are convicted of murder or robbery with violence and sentenced to death every year.
Yet Kenya has not carried out any executions since coup plotter Hezekiah Ochuka was hanged in 1987.
It has been proposed that a facility, known elsewhere as a Victims’ Compensation Fund, to be created to administer the restitution.
It could be financed either through the Exchequer or a revolving fund fed by income earned through inmate labour. It could also be funded from the proceeds of the sale of property belonging to murder and violent robbery convicts.
In some countries, the victims’ rights movement has led to restitution legislation. In the United States, for instance, the Mandatory Victims Restitution Act of 1996 requires federal courts to order full restitution to victims in certain cases.
Forty-eight of the 50 US states have passed victims’ rights legislation; 24 provide for mandatory restitution that can cover the costs of medical care, funerals and burials.
Ms Baraza said Kenya should seize the opportunity offered by the constitution-making to revisit the issue of capital punishment even as it explores ways in which the burden of families of those killed can be alleviated.
“I don’t support the death penalty, yet I understand how victims feel. I think it is time to start debating the issue of compensation. We can explore it.”
The issue of victims’ compensation has arisen now because some bereaved families could be among taxpayers who are contributing millions of shillings in taxes towards the upkeep of the more than 7,000 death-row inmates who may never be hanged.
The death row inmates, unlike those serving jail terms for other crimes, seldom work in prison workshops and fields.
“Our penal system focuses too much on the perpetrator; we need to begin focusing more on the victim,” said Lawrence Mute, a commissioner with the Kenya National Commission on Human Rights (KNCHR). “How can we begin to focus more on victims?”
According to Ms Baraza, the death sentence is hardly a deterrent to crime because once the punishment is carried out, the criminal doesn’t have the opportunity to reform.
Many key institutions concerned with the twin issues of justice and human rights agree that the country needs to do more for the victim.
The Law Society of Kenya, Kituo Cha Sheria, and the KNCHR, among others, say the burden on the victim should be lessened.
Where they disagree is the form the proposed compensation should take. While some caution against the establishment of a fund that could end up straining state resources even more, others say jails can be made self-sustaining and their normal budgetary allocations diverted to the compensation fund.
Gertrude Angote, the coordinator of Legal Advice Centre (popularly known as Kituo cha Sheria), proposes an arrangement in which convicts are involved in productive work, and the proceeds go into a revolving fund to benefit families of the victims.
Ms Angote said the death penalty should be replaced by a lesser form of punishment because it has failed to deter crime. “We can abolish the death penalty and have a way in which the (bereaved) families are compensated.”
The most radical approach is proposed by Naomi Barasa, a gender rights advocate working with a leading international human rights agency.
She said jails can be made self-sustaining, and the budgetary allocation to the Prisons Department could go into the compensation fund.
“Prisons should run themselves. Some of these people are good teachers and prospective authors who can be hired (either by the government or the public) to work for a fee. The money can go towards making prisons run themselves.”
Kenya has 78 jails and prisons holding about 35,000 inmates; they were designed to accommodate 15,000.
One of the legal experts who is uncomfortable with a full-fledged victims’ compensation fund is KNCHR commissioner Mute. But he would be hesitant to burden the state.
“I don’t think we can compensate. Rather we need a broad network of support” that includes counselling, he said. The commissioner warned about the possible discrepancies in applying the law were compensation to be central in the justice system.
“If, for instance, you were to kill a single life and you were forced to compensate, and on the other hand there is a minister who steals Sh10 billion — which can save 10 lives — goes scot-free, how would you explain the discrepancy?”