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Published online by Cambridge University Press: 17 October 2018
The decision of the Supreme Court of Kenya (Court) in Francis Karioko Muruatetu and Another v. Republic (Muruatetu), finding the mandatory nature of the death penalty unconstitutional, represents not only a victory for human rights in Africa but also the transformative capacity of contemporary constitutions in Africa and the growing assertiveness of African judiciaries. In the judgment, the Court held that the mandatory death penalty is “out of sync with the progressive Bill of Rights” in Kenya's 2010 Constitution (para. 64) and an affront to the rule of law. The Court also relied on global death penalty jurisprudence to find the mandatory death sentence “harsh, unjust and unfair” (para. 48). Consequently, the Court mandated that all trial courts conduct a pre-sentencing hearing to determine whether the death penalty is deserved. The Court's judgment could spell the end of the mandatory death penalty in Kenya after almost 120 years on the statute books.
1 See, e.g., Gathii, James Thuo, The Contested Empowerment of Kenya's Judiciary, 2010–2015: A Historical Institutional Analysis (2016)Google Scholar.
2 The trial and conviction at the High Court were concluded under Kenya's 1963 Independence Constitution. The Independence Constitution was repealed on August 27, 2010 when the country's current Constitution was promulgated after years of failed constitutional reform attempts. The Petitioners’ appeal to the Supreme Court, and its resulting decision discussed here, were decided under the 2010 Constitution.
3 Kibaki Saves 4000 Prisoners from Hangman's Noose, Standard Digital (Aug. 4, 2009), at https://www.standardmedia.co.ke/business/article/1144020722/kibaki-saves-4000-prisoners-from-hangman-s-noose.
4 Mutiso v. Republic C.A., Crim. App. No. 17 of 2008, Judgment (Kenya Ct. of App. Feb. 29, 2008) (Kenya).
5 Mwaura v. Republic C.A., Crim. App. No. 5 of 2008, Judgment (Kenya Ct. of App. Feb. 21, 2008) (Kenya).
6 Kigula v. Attorney General, S.C. Const. Pet. No. 3 (Uganda Sup. Ct. 2006) (Uganda).
7 Kafantayeni v. the Attorney General, S.C. Const. Case No. 12 (Malawi High Ct. 2005) (Malawi).
8 Reyes v. the Queen, App. No. 64 of 2001 (Belize Ct. of App. Mar. 11, 2002) (Belize).
9 Woodson v. North Carolina, 428 U.S. 280 (1976).
10 Robertson v. Louisiana, 431 U.S. 633 (1977).
11 Mithu v. State of Punjab, 2 SCR 690 (1983).
12 Article 2(5) of the Constitution provides that the general rules of international law shall form part of the laws of Kenya while Article 2(6) incorporates treaties ratified by Kenya into Kenyan law.
13 Section 71(1) of the repealed constitution states that: “No person shall be deprived of his life intentionally save in execution of the sentence of a court in respect of a criminal offence under the law of Kenya of which he has been convicted.”
14 Edwards v. The Bahamas, Report No. 48/01 (Inter-Am. Comm'n H.R. Apr. 4, 2001).
15 See Department of Public Communications, Office of the Attorney General and Department of Justice, Taskforce on Death Penalty Commences Assignment (Mar. 7, 2018), at http://www.statelaw.go.ke/task-force-on-death-penalty-commences-assignment.
16 See Novak, Andrew, The Death Penalty in Africa: Foundations and Future Prospects (2014)CrossRefGoogle Scholar (tracing the introduction and significance of the death penalty in Sub-Saharan Africa, from the colonial period to the era of democratization).
17 The Supreme Court of Kenya was established by the 2010 Constitution.
18 Although a task force committee was put in place in March 2018, as of the time of this review, no amendment, or bill has been introduced in Parliament for purposes of amending or repealing Section 204 of the Penal Code.
19 Although Muruatetu specifically dealt with the mandatory death sentence in respect of murder, the decision's expansive reasoning can be applied to other offenses that impose a mandatory death sentence, including treason, robbery with violence, and attempted robbery with violence. In a subsequent decision, Okungu v. Republic C.A., Crim App. No. 56 of 2013, Judgment (Kenya Ct. of App. Jan. 28, 2013) (Kenya), the Court of Appeal, relying on Muruatetu, held Sections 296(2) and 297(2) of the Penal Code, which impose the mandatory death sentence for the offenses of robbery with violence and attempted robbery with violence, unconstitutional.
20 Wangui v. Republic H.C., Crim. Case No. 35 of 2012, Ruling (Kenya High Ct. Sept. 24, 2014) (Kenya).
21 Kafkaris v. Cyprus, App. No. 21906/04, Judgment (Eur. Ct. H.R. Feb. 12, 2008); Vinter v. The United Kingdom, App. Nos. 66069/09, 130/10, 3896/10, Judgment (Eur. Ct. H.R. Jan. 17, 2002); László Magyar v. Hungary, App. No. 73593/10, Judgment (Eur. Ct. H.R. May 20, 2014) (examining different national sentencing regimes in light of Article 3 of the European Convention on Human Rights, which prohibits torture and cruel, inhuman, and degrading treatment or punishment).
22 Okungu, supra note 19.
23 Okungu, supra note 19, para. 9.