‘mandatory’ Death Penalty in Kenya: an Examination of Its Legality in Light of the Constitution of Kenya 2010 and the “right to Freedom From Inhuman or Degrading Treatment or Punishment”

Abstract

This study evaluates the ‘Mandatory’ Death Penalty in Kenya, its legality through the lens of the constitution of Kenya 2010. Despite being codified in the laws of Kenya, the death penalties have not been executed in Kenya for a long time and it has been argued by many lawyers that Kenya has de facto abandoned the practice of the death penalty, but not de jure. When Kenyan courts pass death penalties upon capital convicts, they are not executed but instead made to serve life imprisonments. Most colonies in the world, Kenya being one of them, adopted their colonizer’s laws upon gaining their independence but continued with the colonizers’ legal systems. Among the laws inherited by Kenya from its colonizers was the mandatory death penalty for selected crimes, which continues to be part of the Kenya’s laws to-date even as the same penalty was abolished in Britain in 1965. Following this, there have been ostensibly successful international campaigns, treaties and practices forming international law on the abolition of the death penalty in the commonwealth colony states from the 1970’s to-date. A death penalty abolishment wave swept through the commonwealth nations in the Caribbean’s in the late 1990’s and later reached the African former British colonies nations in the early years of 21st century between the years 2000-2010. The general objective of this study was to examine the status and the extent to which mandatory death penalty in Kenya complies with the international laws and human right principles. Specifically, the study sought to answer the following research questions: what legal theoretical positions anchor the mandatory death penalty in the criminal punishment in Kenya today? What is the status of the implementation of mandatory death penalty in other jurisdictions?, and lastly, is the mandatory death penalty in Kenya carried out in compliance with the human rights law? The study relied on qualitative assessment of secondary data in Kenya and other jurisdictions. Results indicate that Kenya still relies on the theoretical conceptualization of mandatory death penalty based on the commonwealth perspectives. It is also clear that most jurisdictions have abolished mandatory death penalty as inhuman practice. Additionally, in terms of compliance with human rights law, mandatory death penalty is not practiced in Kenya, although it has remained in the constitution, thereby sending mixed signal to the world. In conclusion, Kenya needs to expunge death penalty from the constitution to avoid any whimsical implementation of the same should perspective change.