alexa The Supreme Court almost killed the death penalty - Daily Nation

The Supreme Court almost killed the death penalty

Friday December 15 2017

More by this Author

In 1994, Morgan Freeman performed a majestic role in one of the best dramas ever produced by Hollywood, The Shawshank Redemption.

Freeman, acting as Red, a convicted murderer, says to the parole officer, who had repeatedly denied his pardon pleas:

There’s not a day goes by I don’t feel regret. Not because I’m in here, but because you think I should be. I look back on the way I was then: a young, stupid kid who committed that terrible crime. I want to talk to him. I want to try to talk some sense to him, tell him the way things are. But I can’t. That kid’s long gone, and this old man is all that’s left. I got to live with that… A whole life blown away in the blink of an eye. Nothing left but all the time in the world to think about it.

Freeman’s piercing words stuck in my mind. I used them almost a year ago when I wrote about the wonderful work the African Prisons Project (APP) was doing in Kenyan prisons.

Thanks to APP and its founder Alexander McLean, I met Susan Kigula, at the Lang’ata Women’s Prison. She spoke to women prisoners with passion and hope. She had been sentenced to death, like most of them.

Susan never knew the turn her life would take. She was 21 when she was sentenced to death in Uganda. She learnt in her own skin that life in prison shatters hope, dreams, dignity and beauty. It drains the spirit and humanity out of a convict, like Harry Potter’s dementors.


Susan did not give up. She became a pioneer of the African Prisons Project leadership programme. She studied law while in jail by distance learning as an APP student.

She first finished her secondary school and then proceeded to do a common-law diploma and, finally, graduated with a law degree (LLB) from the University of London.

While still in jail, Susan set up a school for her inmates, becoming both a student and teacher, for prisoners and wardens alike.

Susan led a successful groundbreaking challenge on the constitutionality of the mandatory death sentence, taking into account mitigating circumstances, in the case of Susan Kigula and 416 Others v. Uganda, filed initially in Uganda’s Constitutional Court in 2006. The appeal was heard at the Supreme Court of Uganda in 2009.

The court revisited her sentence, to a term of 20 years. Further remission and commutation of time already served led to her final release in January 2016.

Susan’s legacy has made a deep impact on Kenyan jurisprudence. In their decision on Karioko Muruatetu & Wilson Thirimbu Mwangi v. Kenya, the Supreme Court of Kenya declared the mandatory application of the death penalty unconstitutional in murder cases. The court said that in deciding this, it was “greatly persuaded” by the decision of the Ugandan Supreme Court in Susan Kigula’s case.

Once again, the Supreme Court of Kenya made a groundbreaking decision. This time it was not about politics, but about crime and punishment. The court navigated with amazing mastery through the difficult waters of intricate legal principles.


The case brought before the court demanded the justices to answer three delicate matters.

First, the extent of the discretionary powers of the judge and of the appellate court when exercising a judicial function or deciding cases before them. Here too, the Supreme Court also pondered the binding power sentencing guidelines may have on a judge.

Second, the nature of the separation of powers between the legislature and the judiciary vis-à-vis judicial innovation and independence.

Third, the place of international law within Kenya’s legal framework.


Discretionary powers grant the judge the latitude to decide in one way or another depending on the context and circumstances of the crime. This freedom or discretion had been undermined on two accounts.

One, the rigid conception of Section 204 of the Penal Code that says, “Any person convicted of murder shall be sentenced to death.” Two, the sentencing guidelines issued by the judiciary in 2016.

According to the Supreme Court, these constraints on the judge’s deciding power violate the right to a fair trial, which involves the right to a fair sentence, having justice as the ultimate goal.

The court said:

If a Judge does not have discretion to take into account mitigating circumstances it is possible to overlook some personal history and the circumstances of the offender which may make the sentence wholly disproportionate to the accused’s criminal culpability. Consequently, failure to individualise the circumstances of an offence or offender may result in the undesirable effect of ‘overpunishing’ the convict.

The Supreme Court agreed that the mandatory application of the death sentence in the case of murder violated Article 50 (2) (q) of the Constitution for it made appeals largely irrelevant, because appeals would have been in practice pre-determined by the findings of the lower-instance judge.

This is how the right of access to justice is also fettered and convicts were “denied the right to have their sentence reviewed by a higher Court – their appeal is in essence limited only to the conviction. There is no opportunity for a reviewing higher court to consider whether the death sentence was an appropriate punishment in the circumstances of the particular offense or offender.”

Additionally, the court also took into account the limited guiding nature of the 2016 Judiciary of Kenya Sentencing Policy Guidelines. These guidelines aimed at giving a certain harmony to the contradicting jurisprudence courts were issuing after the 2010 Constitution was passed.

Since 2010, we had a mad rush of rights in the courts. The new Bill of Rights was extremely wide and public participation was unrestricted. Judges were soon overwhelmed and jurisprudence soon became contradicting and chaotic.


To put some sense into this mess that could jeopardise the enormous strides we had made thanks to the 2010 Constitution, Chief Justice Willy Mutunga issued the sentencing guidelines we have mentioned.

According to these guidelines, sentences are imposed to meet six objectives: retribution, deterrence, rehabilitation, restorative justice, community protection, and denunciation.

The aim was to build a coherent and harmonious body of jurisprudence, and to make the six key objectives of modern criminal law sentencing a reality.

However, the guidelines quickly became a fixed unbending rule. The Supreme Court has now corrected this rigidity by contextualising the purpose of such guidelines.


In 2013, a five-judge bench of the Court of Appeal affirmed what I have repeatedly called ‘The Mwaura Principle”.

The Court of Appeal had reversed a decision by the High Court declaring the death penalty unconstitutional. The High Court had based its argument on the spirit of the Constitution, but the Court of Appeal reversed that notion in the case of Joseph Njuguna Mwaura & 2 others v. Republic. The Court of Appeal said:

Our present Constitution was sanctioned by the people of Kenya…and the voice of the people was loud and clear: that they wished to retain the limitation on the right to life, which now presents itself in Article 26 (3). Death as a penalty has been sanctioned by the Constitution. We believe that…death penalty remains a lawful sentence in Kenya… The Court cannot purport to be ahead of the people of Kenya or Parliament. … We draw inspiration from the words of Stamp LJ in Blackburn vs Attorney General where he stated that: Parliament enacts laws; and it is the duty of this Court in proper cases to interpret those laws when made; but it is not part of this Court’s function or duty to make declarations in general terms regarding the powers of Parliament, more particularly where the circumstances in which the Court is asked to intervene are purely hypothetical… Should Kenyans decide that it is time to remove the death sentence from our statute books, then they shall do so through their representatives in Parliament. In the meantime, the sentence of death shall continue to be imposed in case of conviction where the law provides.

This gave birth to the Mwaura Principle, “Laws are made by Parliament, not by the Court. The Court cannot purport to be ahead of Parliament. Parliament enacts laws and the court interprets those laws when made”.

Following this principle, the abolition of the death penalty will only be achieved after Parliament amends the Penal Code. The 2010 Constitution remained mysteriously mute about the death penalty, and this makes the Penal Code’s death penalty applicable.

It is also important to consider that Article 26(3) and (4) of the 2010 Constitution paved the way for a wide application of the death penalty in a strict legal sense.


In Muruatetu & Mwangi v. Kenya, the Supreme Court did not abolish the death penalty, for it has no strict legal basis for doing so, but it did declare unconstitutional the mandatory application of the death penalty for murder cases.

There is still homework to be done, and the court has requested the Attorney-General, the Law Reform Commission and Parliament to do it. They should harmonise and table before Parliament our penal laws that are “out of sync with the progressive Bill of Rights” enshrined in our person-centred Constitution.

The court was reluctant to step into the shoes of Parliament, and rightly so. The court said, “As to what amounts to life imprisonment, that is a matter for the legislative branch of government. It is not for the courts to determine for the people what should be a sufficient term of years for a person who has committed an offence that society finds reprehensible to serve.”

The Supreme Court advised that the harmonisation of our penal laws should take into consideration the international treaties Kenya has ratified, which leads us to our third and final point.


Article 2(6) of the Constitution says that “any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.”

The court has reaffirmed this by asking the Attorney-General and Parliament to propose and pass legislation that “will enable us to comply with Articles 2(6) of the Constitution which states that any treaty or convention ratified by Kenya shall form part of the law of Kenya.”

In line with this, the Supreme Court considers Article 26 and 10(3) of the International Covenant on Civil and Political Rights which Kenya “ratified in 1972 and for that reason, the Covenant forms part of Kenyan law” as part of the legal parameters to be used when defining non-discrimination and sentencing.

There is no doubt that Article 2(6) of the Constitution declared Kenya a monist state. This is more important than we may perceive.

Monism considers international and national law as a unity, so whatever the country ratifies is automatically part of the internal law of the State.

Dualism, instead, considers international law as a separate body. Nothing that happens in international law affects the internal law of the State until it is passed as an act of Parliament through a process called domestication.


Under the old Constitution, Kenya was clearly dualist, but this changed after 2010. Yet, still several good scholars describe Kenya as a dualist or hybrid State. It seems these scholars erroneously mix up the concepts of ratification and approval.

Some argue that Kenya is still dualist because Parliament must approve ratification. Others argue that Kenya is a hybrid because both arms of government (Executive and legislative) participate in the process of ratification of treaties.

What is ratification? It is the specific act by which a State accepts to be bound by the terms of the treaty, convention, covenant, etc. In Kenya, ratification is performed by the Executive. The Treaty Making and Ratification Act of Kenya tasks the Cabinet secretary in charge of Foreign Affairs with the coordination of such matters.

What is approval? It is an internal parliamentary step prior to ratification by which Parliament gives the green light to the Executive to go ahead and ratify an international agreement.

While ratification is an Executive action with external consequences, approval, instead, is an internal step.

Before 2010, all treaties ratified by Kenya had to be brought to Parliament to be passed as Acts of Parliament. This process was called domestication. This is how we ended up with the Geneva Conventions Act of Kenya (Cap 198), the Bretton Woods Agreements Act of Kenya (Cap 464), etc.

Ever since 2010, no treaty has been domesticated. Once ratified they are already part of the laws of Kenya, and no domestication is required.

The Supreme Court has made it clear that all the treaties Kenya has ratified are part of the laws of Kenya under the Constitution. It is now left to the discretion of the judge to decide the hierarchy between treaties and acts of Parliament, depending on their conformity to the Constitution, the subject matter and the date of enactment or ratification.


The Supreme Court sealed its judgment by stating that:

a) The mandatory nature of the death sentence as provided for under Section 204 of the Penal Code is hereby declared unconstitutional. For the avoidance of doubt, this order does not disturb the validity of the death sentence as contemplated under Article 26(3) of the Constitution. 

b) This matter is hereby remitted to the High Court for re- hearing on sentence only, on a priority basis, and in conformity with this judgment. 

c) The Attorney General, the Director of Public Prosecutions and and other relevant agencies shall prepare a detailed professional review in the context of this Judgment and Order made with a view to setting up a framework to deal with sentence re-hearing cases similar to that of the petitioners herein. The Attorney General is hereby granted twelve (12) months from the date of this Judgment to give a progress report to this Court on the same.
d) We direct that this Judgment be placed before the Speakers of the National Assembly and the Senate, the Attorney-General, and the Kenya Law Reform Commission, attended with a signal of the utmost urgency, for any necessary amendments, formulation and enactment of statute law, to give effect to this judgment on the mandatory nature of the death sentence and the parameters of what ought to constitute life imprisonment.

In this amazing landmark ruling, the Supreme Court has brought clarity to key principles of law, and in doing so, it also sentenced the death penalty to life imprisonment in Kenya.

Dr Franceschi is the dean of Strathmore Law School. [email protected]; Twitter: @lgfranceschi