Death is the most controversial topic in many cultures and societies. Some believe life is cyclical; it doesn’t have an end. Others believe life is lineal; there is an end to it.
While some talk about it freely, in most African cultures death is usually spoken about in hushed tones and whispers. In some communities, it is an abomination to talk about death. They believe it is an enemy of life and life should be preserved by all means, even if the case is hopeless.
I take ‘hopeless’ to mean those suffering from incurable diseases, habitual offenders, murderers or other people or conduct that disrupts, or terminates, life.
Most human beings fear death. We can tell from the many inventions and products churned out on a daily basis to prolong life, prevent ageing and delay death. If this is the case, what about that person who knows that on a certain date they will meet their death in the most inhumane way?
No matter how hard we try to justify the death penalty through religion, culture and laws, it still is inhumane. Death is barbaric, inhumane and degrading. Why should one human being condemn another to such cruelty?
In Kenyan laws, the death penalty is prescribed in the Penal Code for offences of murder, robbery with violence, attempted robbery with violence, treason and administration of oath to bind a person to commit a capital offence.
Until recently, the courts did not have discretion to consider mitigation when meting out the death penalty unless where the accused was mentally ill, pregnant or a minor.
The death penalty is a residue of the colonial laws imposed on Kenya by the British colonial master, who used it to uphold “good governance, justice and civilisation”. Violence and death were tools to control the African and facilitate operations of the State.
The application of the death penalty in Kenya was heightened during the Independence struggle. Records show that 280 of the 3,584 people sentenced to death were executed in 24 years — 1963 to 1987.
Around the world, 106 countries have abolished the death penalty for all crimes, seven for ordinary crimes, 29 are abolitionist in practice (including Kenya) and 56 retain the practice.
The death penalty, whether in law or practice, deprives a person of their humanity. Living on death row is a two-pronged punishment: Psychological torture for waiting to die and the death itself.
But how can a regional economic power and democratically progressive nation such as Kenya keep such a heinous punishment in its laws? The penalty has not deterred crime. The threshold in some of the capital offences that attract the death penalty are low.
Further, Kenyan prisons are congested due to limited infrastructure.
While the prisons authorities might try to offer good living conditions, the high numbers of inmates make it hard to manage the wards, especially in regard to personal hygiene. This usually leads to infections and diseases. This further threatens their rights to life, dignity and privacy.
I have spent time with inmates who had been condemned to death before the sentences were commuted to life imprisonment.
I have seen them making use of their time in prison in many useful ways: Studying for degrees, teaching their colleagues in the prison school and using their technical skills in the workshop, among other vocational programmes.
I have witnessed some of these people, who had a date with the hangman, supporting fellow inmates to access justice and even challenging unconstitutional laws in court.
I have talked to people who, in my opinion, have reformed and are ripe for reintegration. I have seen people who were on death row released either through acquittal on appeal or the presidential pardon moving on to provide immense service to the community.
I do not even want to get to those who, for whatever reason, have innocently found themselves in prison.
I wonder what loss we would incur if these useful members of society had been killed.
The British, who enjoy a cordial bilateral relationships with Kenya, have a moral obligation to advocate against death penalty in their former colony too. They introduced this heinous law and should, therefore, come out to condemn it and support the abolition movement.
As we mark the 16th World Day Against Death Penalty today, it is time Kenya looked at the effectiveness of the death penalty and whether we need to continue having it in our books or not.
Mr Muthuri is a legal aid manager at African Prisons Project. [email protected]