Death row inmates living in anxiety, unsure of last day

Ten years ago, Rashi Shah was living the good life. He had a fancy house, an expensive car and every night, he went to sleep in a big, soft bed.

“I was a pampered little boy,” the 29-year-old says, decked out in head-to-toe stripes and surrounded by five prison officials at Kamiti Maximum Security. But things are different now for the British national and former General Motors engineer. He was sentenced to death in 2008.

“I’m accused of killing my parents,” he says casually. “They were brutally murdered in their home… either slashed with an axe or a sickle,” he says, recounting the story as if he’s told it many times before.

Shah pleaded Not Guilty and hopes a future appeal will secure his freedom. Until then, his days are spent idling in a tiny overcrowded cell with other convicted murders and violent thieves — unsure if or when his date with the hangman will come.

But rights activists say regardless of whether inmates like Shah are guilty or not, the death penalty is the ultimate violation of their constitutional right to life.

The new Constitution remains ambiguous on the subject. On one hand, it guarantees everyone the right to life and on the other, it permits the intentional killing of prisoners convicted of capital offences.

While rights lawyers support Kenya for becoming an abolitionist state in practice, they say the country treads a dangerous legal grey area, as the death penalty compromises the most precious human right of all. Capital punishment has been applied in Kenya since the colonial era.

In 1969, when the United Kingdom formally abolished the practice, Kenya had already gained independence. The country decided to retain the death penalty. By 1987, Kenya had hanged 280 of 3,584 people sentenced to death.

But over the last two decades, Kenya has slowly backed away from the punishment. The last person hanged here was John Ochuka, who was convicted of treason and hung in 1987.

Since then, Kenya has slowly adopted the role of an abolitionist state in practice, if not in law. Over the years, condemned inmates began clogging up the prisons. They kept flowing in, while none were going out.

Last year, President Kibaki commuted 4,000 of the backlogged death row prisoners to life sentences. Albert Kimaiyo, 55, was one of them. He’s served 15 years at Kamiti for the murder of his colleague and friend after, he says, a land deal went bad.

“Today I feel relieved because in Condemn A, by 4pm, we were locked in. We used to get a 15 minute sun-bask and within the time you could do everything that you needed to do like bathing and then the whole day you would stay inside the cells,” he said.

Kimaiyo used to live with a noose hanging over his head. But he now knows that when he finally leaves Kamiti, one way or another, it won’t be at the end of a rope.

President Kibaki’s views on capital punishment make it unlikely he will ever sign a death warrant, but Kenya’s ultimate legal document says it’s still possible. Or does it?

“There are two schools of thought,” says Mr William Wameyo, a lawyer with Musingh and Company.

“One takes the view that the death sentence is actually retained; it says that a person shall not be deprived of life intentionally with the proviso: except to the extent authorised by this constitution or other written law.”

On the other hand, a contradicting article in the Constitution “is quite clear that every person has the right to life. Full stop. There is no proviso,” Mr Wameyo says.

“We need to file a case for the court to come out clearly on what this actually means.” Despite the fact that prisoners are no longer hanged, rights organs say being kept on death row subjects inmates to torture, and degrading conditions.

“Death row inmates are kept as if they are cows in a slaughterhouse waiting to be slaughtered, yet the slaughter man is not around,” said Mr Tom Kagwe, the deputy director of the Kenya Human Rights Commission.

“You never know when the hangman will come, knock on your door,” he says, rapping his knuckles three times on his wooden desk for effect.

The Kenya National Commission on Human Rights has urged the government to completely abolish the practice. In a position paper on the abolition of the death penalty, KNHCR says the practice .contravenes the Constitution.

In addition, it violates similar commitments Kenya made when signing on to the International Covenant on Civil and Political Rights and the Convention Against Torture.

“The death penalty is not only about the moment of execution,” KNHCR says in its paper. “There is evidence that in a de facto abolitionist state like Kenya, a person always lives in anxiety with the reality of death hanging over his or her head.”

Capital offences include treason, murder, robbery with violence and attempted robbery with violence. Local lawyer Timothy Bryant isn’t vouching for the total abolition of the death penalty. But he wants to change the way the judicial system views capital punishment.

He argues that a mandatory death sentence for robbery with violence or murder is unconstitutional. “All over the world, if someone steals a bicycle or a goat, they have a chance to show the magistrate although they had been convicted, they are not deserving of the maximum sentence,” he said.

But in Kenya, the only sentence available for murder or robbery with violence is death — whether you rob a bank with a machine gun or steal a chicken with a stick.

Bryant says Kenya is in violation of the ICCPR when it punishes someone with the death penalty, and no harm or death resulted from the crime.

The ICCPR “says those countries that wish to retain the death penalty should only apply it in the most serious crimes,” he says.

“Our argument is if you have robbery with violence and no one is hurt, no victim dies and no one suffers serious injury, that’s not a most serious crime.”

Deputy prisons commissioner, Benjamin Njoga says Parliament is trying to juggle international expectations along with public pressure.“The country has not hanged anyone because of the international outcry; it’s considered to be inhuman,” he said.

“Because of the crime rate of capital offices, people are very afraid of what is happening in the country. So Parliament has declined (total abolition) so the new Constitution left it the way it is.”

But that leaves Kenya neither here nor there, sending the confusing message that it respects the right to life on paper, but not so much in practice.

But the way Shah sees the situation, it’s as black and white as the pajamas on his back. “Here, you’ve got one foot in the grave and one foot out of the grave. Literally,” he said.