The automatic death penalty prescribed for capital offences violate the Constitution and should be outlawed, the Attorney-General, Prof Githu Muigai and the Director of Public Prosecutions, Keriako Tobiko, conceded before the Supreme Court yesterday.
They concurred that the mandatory punishment imposed by the statutes compromised fair trials for accused persons and deprived judicial officers from interrogating appropriateness of sentences for individuals convicted of murder, treason and violent robbery. Prof Muigai told the six-member bench, presided over by Chief Justice David Maraga, that more than 4,000 convicts were affected by the controversial sentence “and the time for reforms has come.”
An urgent legal framework was necessary to resolve the obvious consequences of the invalidation of the offending provision of the law, he said. The government has observed an unofficial moratorium on executions after retired President Mwai Kibaki commuted all death sentences to life imprisonment in August 2009.
Further, there is no consensus among Kenyans regarding the death penalty, Prof Muigai pointed out. However, the Attorney General explained that judges should be vested with the power to determine the minimum period a convict serving life imprisonment should be considered for parole. “We are committed to finding a lasting solution.
Parliament should legislate on these crucial issues,” he said. Senior Assistant DPP, Njagi Nderitu, submitted that the mandatory death sentence offended the doctrine of separation of powers among the three arms of Government by invading judicial discretion and denying accused persons their constitutional rights to fair trial.
Parliament could only prescribe maximum sentences and give judicial officers the leeway to determine punishment that was commensurate to the nature and circumstances of offences, he said.
They were reacting to arguments by veteran lawyer Fred Ngatia that the automatic death penalty was a relic of colonialism that made a mockery of the rights of accused persons to offer mitigation before sentencing and lodge appeals once they were aggrieved by the outcome of their trials.
It was unconstitutional for courts of law to render uniform pre-determined punishment for capital offences without considering circumstances of each case, he said.
Ngatia said the judicial system was facing a crisis since the Court of Appeal invalidated the mandatory death penalty for murder on May 20, 2011 but the decision was virtually overturned by the same bench on October 18, 2013. It was unjust to render mitigation and appeals mere academic exercises, he said.
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