THE DEATH SENTENCE

Yesterday, Justice Nzioka of the High Court in Nairobi made headlines as she sentenced the convicted Jowie Irungu, handing him the very dreaded death penalty. I'm not going into the details of the trial because all the proceedings are well documented in the public domain. What followed the landmark sentencing was an elicitation of mixed reactions from netizens on various social media platforms. The standout sentiment was that the death sentence had been banned by the Supreme Court of Kenya (SCOK) chaired by former CJ David Maraga and therefore Justice Nzioka erred in her sentencing.

My submission however, is that nothing could be further from the truth. Here is why:
First off, we need to understand that the death penalty was ideally not 'banned' as is widely speculated. What the SCOK did was declare as unconstitutional the provision of a 'mandatory' death sentence for certain classes of offenders, ire those convicted for murder and/or robbery with violence. Before, it didn't really matter the circumstances and context within which the crimes were committed. Judges' hands were tied when sentencing such convicts It mattered less that you were a first-time offender or whatever you stole was of such insignificant value as a pen or chicken, or whether you were the guy standing watch as your accomplice did the act. As long as the robbery had taint marks of violence, it was a mandatory death sentence for you.

The SCOK had an issue with the 'mandatory" clause because it was an infringement on the right to a fair trial, considering the punishment was as grave as death. In such cases, there shouldn't be a margin of error because if it comes up later that a person was wrongfully convicted and handed the death penalty, there wouldn't be remedy enough. to give them their life back.

So the SCOK declared the clause 'mandatory death sentence unconstitutional as ry probably a precursor to further legal amendments by parliament. It didn't ban the sentence altogether. However, seeing as Kenya has not had an official execution since late 80's when Hezekiah Ochuka and Pancras Oteyo Okumu were convicted, sentenced and hanged due to treason, we are considered a de facto abolitionist state, as are many other countries affiliated to the United Nations. UN considers the death penalty as a critical infrigement to the very basic right to life. This is because the other human rights cannot be enjoyed in a vacuum. It is for this reason that world order is moving towards complete de jure abolishment of the death penalty.

In Kenya, it is the duty of parliament to amend the law in line with that respect. The Kenya National Human Rights Commission submitted. a petition to parliament on the same but parliament rejected it on grounds of the public rejecting it. 

To wrap it up, death sentences in Kenya will colloquially be interpreted and treated as life imprisonment with the only difference being that death row inmates do not have access to parole, or early release due to good behaviour. They quite simply just rot in prison, literally.
With concerted effort and goodwill by parliament however, we might just manage to do away with the death penalty. altogether.

@Oiraqaleb Esq.