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Death row convicts dodge the hangman to serve terms at home

Sunday July 14 2019

Justice Eric Ogola.

Justice Eric Ogola. While re-sentencing one of the convicts, he said the progress report from prison portrayed a changed man. PHOTO | FILE | NATION MEDIA GROUP 

PHILIP MUYANGA
By PHILIP MUYANGA
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Mr Juma Mzuri Chovu, a death row convict, will no longer have to while away time at Shimo la Tewa prison, awaiting his date with the hangman.

Instead, he will be required to report to the police twice every year as part of the condition he was given to secure his freedom.

Mr Mzuri is among hundreds of death row convicts whose sentences have been commuted to definite jail terms which many will serve under probation in the comfort of their homes.

Mr Mzuri had already served almost 15 years in jail after he was found guilty and handed a death sentence for the murder of his wife in Changamwe, Mombasa County, on May 27, 1999.

CHANGED MAN

In re-sentencing Mr Mzuri, Justice Eric Ogola said the progress report from the prison portrayed a changed man.

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Justice Ogola considered the report’s findings that Mr Mzuri, like his name would suggest, was a transformed person in charge of a prison prayer group.

He was also in charge of elderly convicts and had attained Grade 1 in tailoring.

“During the probation, the petitioner shall not be engaged in any offence and if he does, the suspended sentence will automatically lapse and he will be taken to Shimo la Tewa prison to serve the balance of the sentence,” said Justice Ogola.

Through his lawyer William Wameyo, Mr Mzuri, while regretting murdering his wife, described the incident as a crime of passion committed in the heat of an argument.

Mr Wameyo had argued that the petitioner had not been involved in any crime before the incident and that he was remorseful.

The court was also told that Mr Mzuri regretted his past and continued to suffer over the incident.

PROBATION

In another petition, Mr George Ochieng got a reprieve after his death sentence was commuted to 15 years’ imprisonment, three of which he will serve under probation.

Mr Ochieng, who has already served 12 years at the same prison, is also a beneficiary of the Supreme Court decision.

In December 2017, the Supreme Court declared the mandatory nature of death sentence as provided under the Penal Code unconstitutional.

Mr Ochieng told the court that he has since reformed and is a law-abiding citizen.

Justice Ogola directed the probation officer in charge of Kisauni sub-county where Mr Ochieng comes from to supervise his order on probation.

The judge also warned Mr Ochieng against engaging in any offence during the probation, failing which the suspended sentence will automatically lapse and he will be taken back to prison.

According to a probation officer’s report filed in court, Mr Ochieng’s parents died while he was in jail and his wife is engaged in fish hawking in Kisauni.

The report recommended that the petitioner be received by his family and the community since victims of his offence no longer live where the robbery took place and his family moved away.

ROBBERS

The Director of Public Prosecutions, through prosecutor Japheth Isaboke, said the petitioner was a member of a gang of robbers and the punishment should seek to deter the offence.

But the judge considered the fact that the convict had reformed and the sickness afflicting him, and sentenced him to 17 years in jail, five of which should be suspended and on probation.

In the case of Philip Nzaka Watu, who murdered a dumb and deaf person, the death sentence was reduced to 35 years’ imprisonment, including those he had spent in prison, with no option of a suspended sentence.

“The sentence must be one to deter, a message must be sent to would be offenders that premeditated murder must be punished,” said Justice Ogola.

The judge noted that the death sentence imposed on Mr Watu, who has already served five years in prison, must be replaced by one that reflects the gravity of the offence.

Before December 14, 2017, the fate of murder and robbery with violence suspects was sealed once they were convicted and sentenced to death.

CONDEMNED PRISONERS

Since no executions have been carried out in the country since 1987, death row convicts, commonly referred to as condemned prisoners, were left to die a natural death while in prison.

However, after the Supreme Court decision, the convicts got a new lease of life with the prospects of reduced sentences and freedom.

The Supreme Court, however said their order does not disturb the validity of the death sentence as contemplated under Article 26 (3) of the Constitution.

Subsequent to the decision, hundreds of death row convicts filed petitions at the constitutional division of the High Court seeking rehearing of their sentences.

The High Court referred robbery with violence matters to magistrate’s courts where the convicts had been initially tried and convicted for rehearing of the sentences, while it dealt with murder convicts.