Capital Punishment in Kenya

Capital Punishment in Kenya and its Perils

Capital Punishment in Kenya

Brief Overview of Capital Punishment

Capital punishment is the legalized infliction of death as a penalty for violating criminal law.  By that same token, criminal law is the branch of law that defines crime, establishes punishment, and regulates the investigation and prosecution of people accused of committing crimes.  Throughout history, the controversial death penalty, for various forms of crimes, had existed in antediluvian acts such as stoning, drowning, crucifixion, burning and impaling; with beheading being universally satisfactory. Today, capital punishment is widely accomplished by lethal injection, electrocution, shooting and hanging. Only corporal punishment comes close in severity to capital punishment (or the death penalty), which still remains the most controversial penal practice of the modern world.  Although corporal punishment has been generally eliminated in modern times, the death sentence remains widespread, especially in the developing countries.  “In 2008, there was a growing reluctance among those countries that do retain the death penalty to use it in practice. Only 25 out of 59 countries that retain the death penalty carried out executions” – AI. The trend in developed countries has been to abolish executing prisoners and substitute it with life in prison. While many supporters of capital punishment say that it is a necessary form of retribution, the detractors, and there are many, argue that it’s a barbaric and degrading act. 

Many such detractors dispute the proper interpretation of statistical analysis of its deterrent effect. They present it as a human rights issue involving the proper limits of governmental powers. Today, partly thanks to extensive government legislation authorizing immoral practices like abortion, it is an elusive theme to find any lawful authority that is justifiable with regards to the implementation of the death penalty.  Still and all, many agree that the ethical inadequacies of a government do not disqualify every facet of its authority, and if that were that the case, anarchy would prevail. Capital punishment is not, therefore, a flawless system in actual practice, because imperfect human beings are involved in the procedure of finding the guilty party, and, as such, they are in peril to human error.  A conference at the University Law School in Chicago brought under the limelight that since 1976 (when capital punishment was reinstated in the USA) that 75 convicts were found guilty of capital crimes, sentenced to the death penalty, and were later found innocent – accounting roughly for one seventh of prisoners who have been executed.  The counter argument is that courts would have to abolish all laws to avoid completely the punishment of innocent people.

An extreme version of this question arises in connection with the practices of capital punishment. What justifies the institutionalized killing of those guilty of murder or other grave offenses? Why do we, or should we, seek the death of some criminals? This question is much more pressing in Kenya as a result of the crime bill of 2015 that unsatisfactorily sought to abolish capital punishment in Kenya. How might we define institutionalized punishment, the justification of which is being debated here? Widespread academician agreement holds that legal retribution involves five characteristics. Firstly, that the punishment must engross unpleasant consequences for the offender; for example, imprisonment, fine, or death. Secondly, that the retribution must follow from the violation of a law: a rule of behavior prescribed by a properly constituted governing authority. Thirdly, the one punished must have been found blameworthy of violating the law. Fourthly, the affliction must be administered by someone other than the guilty party. And fifthly, the one administrating the said punishment must be a properly designated authority. Is it reasonable for an authorized representative of society to cause ultimate suffering on those found guilty of violating the law?

Top Five Facts About Capital Punishment

The History of Capital Punishment

The unnerving forms of retribution in ancient societies like Rome and Greece had ruthless chastises, taking to horrific forms like stoning, throwing offenders off a cliff, crucifixion, burning in public, burying alive, hanging, dragging and, of course, the fateful guillotine.  Other bizarrely inventive forms of punishment included physical mutilation like cutting off a hand, mutilating of a tongue or ear, branding, and corporal punishment like thrashing, torture, taking away of personal property, exile and forced hard labour like working in the mines, in the galley of a boat or forced to participation in gladiatorial combat. In medieval England similar hard-hearted capital punishment techniques were in effect, most carried out in public to deter likely offenders and public disesteem for the victims. For severe crimes, punishment took the form of exile and physical mutilation. So, by 1500, capital punishment, including the death penalty, was available for as many as 200 felonies. In fact, the benefit of clergy was applied as a way to downgrade the rampant use of capital punishment.  This is because the clergy in those dark-days was only answerable under ecclesiastical law.  As a result, common law courts could not impose capital punishment.  As the benefit of clergy extended, parliaments endorsed statutes quoting that many serious crimes were not be subject to the opinion of the clergy. And for minor crimes, varied forms of public shaming like the pillory and branding were usually used.

By the 1600’s, and more so in the 1700’s, transportation to new colonies, which involved forced labour in a penal colony, became a popular form of punishment and was by and large seen as an apposite substitute to the death penalty. Forced labour in ship galleys and workhouses was another form of punishment for the minor offenders. In England, anyone convicted of a crime was likely to lose all property rights and rights to inherit property.  In the late 1700’s transportation to the colonies became a less viable alternative, more so for those inhabiting the new colonies. At this point the penitentiaries gave rise to an alternative, capital punishment.  Penitentiaries were designed for holding death penalty offenders and long-term imprisonment.  Great Britain through her expansion of colonies influenced the use of the capital punishment in the United States, Canada and colonial Africa. In Canada for example, the first penitentiary system was ground in Kingston, Ontario, in 1835. Like other consequent penitentiaries, it adopted the congregate method. Retribution for crimes at the start of 19th century was comparable to England.  Death penalty, transportation, corporal punishment, banishment, pillory and branding were in wide use. In 1800, fines were set up in Canada as an alternative to branding, as was imprisonment with hard labour.

Canada’s Race to Abolish Capital Punishment

In 1830, branding was eliminated as a punishment in Canada as was corporal punishment in the form of public flogging. However, whipping in the private confines of the prison continued for many serious crimes offenders.  Whipping remained an alternative punishment for sexual offences in Canada until 1972. Also, capital punishment was also losing goodwill.  In 1833 the Upper Canada legislature restricted capital punishment by death penalty to only nine serious crimes: rape, treason, murder, rape, bestiality, buggery, robbery, arson, and burglary. In 1867, in the advent of Confederation, the federal government had exclusive legislative jurisdiction for determining punishment and crimes.  In 1869, the federal government passed a number of Consolidation Acts, one of which adopted the penalty structure delineated in a similar English Act of 1861. That penal structure for offences started with capital punishment, then life in prison, then terms of imprisonment for shorter spans ranging from six month to fourteen years.  That penalty scheme subsequently adopted in the first Canadian Criminal Code of 1892 and has remained in effect in many ways to date. The BNA Act also assigned the mandate to the federal government to establish and run penal facilities and assigned responsibility for reformatories and local jails to the provinces. Capital punishment by hanging was officially abolished in 1975 in Canada. The last hanging to occur in Canada was in 1962. 

Capital Punishment in Kenya

Capital Punishment in Kenya

Persuading nations that still uphold capital punishment in a world of adburdly complex legal systems is not as easy as it used to be for many a Human Right organizations, including those working towards its abolishment in Kenya. Flush with facts and eager to annul the antediluvian act, capital punishment in Kenya has been a subject of debate in the legal and human rights halls, both haggling over its terms and the unsaid consequences of its absence. Thanks to the rising international pressure to abolish capital punishment globally, Kenya is on the verge of making a last ditch effort to conclude the practise. But old habit die hard! While most people associate capital punishment in Kenya with the advent of colonial administration, and they are right to suppose so, the practise dates back to pre-colonial Kenya. Whilst most communities in Kenya, then and now, possess in a marked degree a savage fear of the presence of death, hastening to escape from its presence, punishment by death in the last was carried out – the hyena left to performs the office of undertaker to the general multitude. Death penalty was used as a form of punishment in pre-colonial Kenya and reserved for the most shameful and reprehensible offences, like unjust killing or stealing.

Kenya’s gained independence in 1963 in December of that year. The country’s complex legal system, an offshoot of the British Empire, was mended to to one focused on local issues. It was the British Empire, with its influence in East Africa from the turn of the 20th century, that brought in the official legislation to approve capital punishment in Kenya as a law. The notion of punishment in colonial Africa was associated with “good governance, justice, and civilization”. Violence and excessive punishment meted by colonial regimes were tools often used to control the operation of the state. As the country wend into a sovereign state, though, the supremacy of the British Empire continued to influence its course. Chief among them: getting the right governance systems. The stronger-than-expected laws of the British were retained almost word by word. Tighter, efficient and forward looking fiscal and monetary policies were also readapted. Then and now, under the Kenyan law, offences of murder, treason and robbery with violence, including attempted robbery with violence, carry a mandatory capital punishment or the death sentence, under section 204, 40(3), 296(2) and 297(2) of the Penal Code, CAP 63 Laws of Kenya. It’s a rather complex system that sets on thinking that whereas the Constitution of Kenya protects the right to life, Section 71 (1) takes it away to the effect that “no person shall be deprived of his life intentionally save in execution of the sentence of a court in respect of a criminal fault under the constitution of Kenya of which he has been convicted.

Whilst the death penalty applied in the United Kingdom until 1965, when the Abolition of Death Penalty Act suspended capital punishment for a period of 5 years, it remained in effect in Kenya. In 1969, the House of Commons voted by 343 to 185 to reaffirm its decision that capital punishment for murder should be permanently abolished. By the time of abolition of the death penalty in Britain, most of her colonies, including Kenya, had attained independence. That meant that it was the choice of respective independent colonies to either follow the trend of Britain to abolish the death penalty or retain it. Kenya chose to retain the death penalty. The application of the death penalty in colonial Kenya was heightened during the struggle for independence. Sir Evelyn Baring, Governor-General of Kenya, in 1953, imposed capital punishment in Kenya for persons who administered the Mau Mau oath. Following Kenya’s independence, reports indicate that from 1963 up until 1987, almost 280 persons out of 3,584 people sentenced to death had been executed. 135 prisoners had benefited from the presidential prerogative of mercy and their death sentences commuted to life imprisonment. “It is believed that the last execution was carried out in 1987 against John Ochuka, who was convicted for the offence of treason.” – KNHRC.

Changes in Capital Punishment Law in Kenya

The debates preceding the adoption of the Bomas Draft Constitution in March 2004 grappled with the questions put to capital punishment in Kenya and its abolition. Undeterred by an initial inclusion of express language in the draft constitution outlawing it, delegates at the National Constitutional Conference eventually voted in favour of retaining capital punishment, principally on the basis that people who committed heinous crimes should be punished as harshly as possible. Even with that, the Bomas Draft recognized that every person has the right to life, but was silent on the death penalty and did not outline the settings under which the right to life may be deprived. Adopting a different approach from the Bomas draft, the Wako Draft recognised the right to life but gave Parliament the power to legislate the extent to which a person may enjoy that right. By implication, capital punishment in Kenya still was extant in the then proposed Draft Constitution that was rejected during the November 2005 referendum. “During the 61st Session of the UN Commission on Human Rights in 2005, Kenya was one among the countries that abstained from voting for a UN Draft Resolution calling for abolition of the death penalty. Kenya also refused to vote on another resolution condemning arbitrary executions and impunity”. At the same time, it is significant that Kenya has still not signed the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR) aiming at abolition of the death penalty. In 2003, then Vice President, Moody Awori, when releasing more than 20 prisoners convicted for capital offences, stated his intent to introduce a Bill in Parliament to abolish it.

Infographic at 18th World Day Against Death Penalty. Published WDADP

The Debate Against Capital Punishment

Human rights organization are openly objected to its brutality. For them the public dis-esteem associated with executions of offenders as public spectacles, involving cruel methods, in not effective. Moreover, capital punishment is not reserved for the most serious crimes. And the assertion of brutality has inspired two different responses by supporters of death penalty. The advocates contend that capital punishment is necessary for the wellbeing of the other citizens and therefore not gratuitous. Secondly, that the death penalty seeks to remove some of the most visibly grisly aspects of execution. Executions that were previously open to the public have been relocated behind closed doors. Governments have also replaced traditional methods of causing death. For example, execution with what are regarded as more modern methods like electrocution and poison gas. The search for less brutal means of causing death has continued to recent times. In 1977, Oklahoma became the first U.S. state to authorize execution by lethal injection, which is the administration of lethal amounts of fast-acting drugs and chemicals. Lethal injection is now the preferred method of carrying out death penalty in the majority of U.S. states. In reality however, these depersonalized and sterilized methods of execution do not eliminate the brutality of the action.

In the debate on human dignity and execution, the critics find very little common ground for capital punishment. At the very least, it’s degrading to the humanity of the person punished. As early as 18th century, those against the death penalty stressed the importance of requiring governments to recognize the importance of each individual. The sanctity of human life. On the other side of the debate, the supporters of capital punishment see nothing wrong with ‘governments’ calculatingly killing terrible people who commit terrible crimes. Therefore, they see no need to perimeter governmental power in this area. In the debate on its effectiveness, activists argue that inflicting death is not necessary to justly punish wrongdoers and control crime. Instead, alternative punishment (like imprisonment) could aptly isolate criminals from society, thus deterring likely offenders from crime and expressing society’s condemnation of those against the law. Beccaria’s essay “Crimes and Punishments” asserts that conviction of crime, rather than its severity, is a better deterrent. Backers of capital punishment counter that the penalty is necessary for the punishment of terrible crimes, because it provides the most complete condemnation and ideal retribution. Furthermore, that the threat of execution is a sui generis deterrent. Supporters contend that capital punishment self-evidently prevents more crime because death is so much more feared than restrictions on one’s benign liberty.

A Social Science Perspective on Capital Punishment

Social scientists have over the course of time collected statistical data on trends in homicide after and before jurisdictions abolished capital punishment. They have also put together the homicide rates in places with versus places without capital punishment. Based on a summary of these studies, the vast majority of statistical comparisons indicate that the presence or absence therein of capital punishment or death penalties does not visibly influence the rate of homicide. These studies invalidate the argument that capital punishment deters crime. As an opponent, this post considers the deterrence argument fully negated and does not suffice to the debate. However, supporters of the death penalty dispute the analysis of the statistical analyses of deterrent effect. They note that because the death penalty is reserved for the most aggravated crime offenders and grim murders, the deterrent effect of capital punishment on such crimes may not be apparent in data on homicide rates in general. In reaction, we argue that the conflicting results of the statistical studies indicate that the deterrent effect of the capital punishment cannot not be proven or disapproved with real certainty. In the absence of beyond questionable proof, the threat of execution might not save some people from being killed; capital punishment should not be retained.

A Historical Perspective of Capital Punishment

In the debate on human rights, capital punishment is furthest-up as a human rights issue, rather than a contest about the proper punishment of criminals. This dissent on capital punishment is seen as a reaction to the glaring political history of the 20th century, and most notably of the distressing and harrowing Holocaust, which was the systematic mass killing of Jews during World War II. All the major nations in Western Europe utilized death penalty prior to World War II but after the defeat of the National Socialist and Fascist governments of Germany and Italy, the two nations became the first super powers in Europe to abolish capital punishment. The postwar movement to end capital punishment, beginning in Germany and Italy and then spreading, represented a reaction to totalitarian forms of government, remembered most for methodically violating the rights of the individual. The human rights focal point on the death penalty has continued, especially in settings of dramatic political change. When people view capital punishment as a human rights issue, countries that are becoming resolutely democratic have been eager to abolish the death penalty, which they associate with the former regimes and outright abuses of power. For example, a number of Eastern European countries abolished capital punishment shortly after the collapse of the communist regime in the late 1980’s. In like manner, the multiracial government of South Africa, officially formed in 1994, quickly banned death penalty (capital punishment) widely associated with apartheid – the infamous policy of racial segregation that was in effect since the late 1940’s.

Infographic on Current Trends of Capital Punishment. Published by Times of India
Infographic on Trends of Capital Punishment. Published by Times of India

In Conclusion

If anything should happen presently to abolish capital punishment in Kenya, it should be guided by four premises; brutality, dignity, effectiveness and human rights.  Having attempted to update the reader with a brief overview of capital punishment – its diminished use around the world and summarized with its ineffectiveness, and combining the works of others – it’s opportune to refute the use of capital punishment as a means to deter serious crimes in society.  As alluded to above, its depersonalized and sterilized methods do not eliminate the brutality.  Secondly, as early as the 18th century, those against the death penalty have stressed the urgent importance of requiring governments to recognize the importance of each individual. In light of this, supporters of capital punishment should see the wrong with governments’ calculatingly killing terrible people who commit grave crimes, and be after the dire need to perimeter governmental power in this area.  Furthermore, majority of statistical comparisons regarding suicide and capital punishment show that the presence or absence of capital punishment does not comparably influence the rate of homicide.  Many a study refute the argument that the capital punishment deters crime. We considers the deterrence argument fully negated and does not suffice to the debate. Capital punishment is not merely an issue about human rights, rather it is establishing proper punishment of criminals. Lastly, capital punishment is not a watertight system in actual practice because imperfect human beings are involved in the procedure of finding the guilty party, and as such, they are vulnerable to errors.

Demystifying Capital Punishment in Kenya

Capital Punishment Around the World

CountryLegal StatusDate of Last Execution
AfghanistanCapital punishment legal 
AlbaniaNo capital punishment 
AlgeriaCapital punishment legal1993
AndorraNo capital punishment1943
AngolaNo capital punishment1992
Antigua and BarbudaCapital punishment legal 
ArgentinaNo capital punishment1984
ArmeniaNo capital punishment 
AustraliaNo capital punishment1967
AustriaNo capital punishment1950
AzerbaijanNo capital punishment1993
The BahamasCapital punishment legal 
BahrainCapital punishment legal 
BangladeshCapital punishment legal 
BarbadosCapital punishment legal 
BelarusCapital punishment legal 
BelgiumNo capital punishment1950
BelizeCapital punishment legal 
BeninCapital punishment legal1987
BhutanNo capital punishment1964
BoliviaNo capital punishment1974
Bosnia and HerzegovinaNo capital punishment 
BotswanaCapital punishment legal 
BrazilNo capital punishment1855
BruneiCapital punishment legal1957
BulgariaNo capital punishment1989
Burkina FasoCapital punishment legal1988
BurundiCapital punishment legal 
CambodiaNo capital punishment1989
CameroonCapital punishment legal 
CanadaNo capital punishment1962
Cape VerdeNo capital punishment1835
Central African RepublicCapital punishment legal1981
ChadCapital punishment legal 
ChileNo capital punishment1985
ChinaCapital punishment legal 
ColombiaNo capital punishment1909
ComorosCapital punishment legal 
Congo, DemocraticCapital punishment legal 
Congo, RepublicCapital punishment legal1982
Cook IslandsNo capital punishment 
Costa RicaNo capital punishment1877
Côte d´IvoireNo capital punishment1990
CroatiaNo capital punishment 
CubaCapital punishment legal 
CyprusNo capital punishment1962
Czech RepublicNo capital punishment1990
DenmarkNo capital punishment1950
DjiboutiNo capital punishment 
DominicaCapital punishment legal 
Dominican RepublicNo capital punishment1966
EcuadorNo capital punishment1906
EgyptCapital punishment legal 
El SalvadorNo capital punishment1973
Equatorial GuineaCapital punishment legal 
EritreaCapital punishment legal 
EstoniaNo capital punishment1991
EthiopiaCapital punishment legal 
Fiji IslandsNo capital punishment1964
FinlandNo capital punishment1944
FranceNo capital punishment1977
GabonCapital punishment legal 
The GambiaCapital punishment legal1981
GeorgiaNo capital punishment1994
GermanyNo capital punishment1949
GhanaCapital punishment legal 
GreeceNo capital punishment1972
GrenadaCapital punishment legal1978
GuatemalaCapital punishment legal 
GuineaCapital punishment legal 
Guinea-BissauNo capital punishment1986
GuyanaCapital punishment legal 
HaitiNo capital punishment1972
HondurasNo capital punishment1940
HungaryNo capital punishment1988
IcelandNo capital punishment1830
IndiaCapital punishment legal 
IndonesiaCapital punishment legal 
IranCapital punishment legal 
IraqCapital punishment legal 
IrelandNo capital punishment1954
IsraelNo capital punishment1962
ItalyNo capital punishment1947
JamaicaCapital punishment legal 
JapanCapital punishment legal 
JordanCapital punishment legal 
KazakhstanCapital punishment legal 
KenyaCapital punishment legal 
KiribatiNo capital punishment 
KuwaitCapital punishment legal 
KyrgyzstanCapital punishment legal 
LaosCapital punishment legal 
LatviaNo capital punishment1996
LebanonCapital punishment legal 
LesothoCapital punishment legal 
LiberiaNo capital punishment 
LibyaCapital punishment legal 
LiechtensteinNo capital punishment1785
LithuaniaNo capital punishment1995
LuxembourgNo capital punishment1949
MacedoniaNo capital punishment 
MadagascarCapital punishment legal1958
MalawiCapital punishment legal 
MalaysiaCapital punishment legal 
MaldivesCapital punishment legal1952
MaliCapital punishment legal1980
MaltaNo capital punishment1943
Marshall IslandsNo capital punishment 
MauritaniaCapital punishment legal1987
MauritiusNo capital punishment1987
MexicoNo capital punishment1937
MicronesiaNo capital punishment 
MoldovaNo capital punishment1995
MonacoNo capital punishment1847
MongoliaCapital punishment legal 
MontenegroNo capital punishment 
MoroccoCapital punishment legal 
MozambiqueNo capital punishment1986
MyanmarCapital punishment legal 
NamibiaNo capital punishment1988
NauruCapital punishment legal 
NepalNo capital punishment1979
The NetherlandsNo capital punishment1952
New ZealandNo capital punishment1957
NicaraguaNo capital punishment1930
NigerCapital punishment legal1976
NigeriaCapital punishment legal 
NiueNo capital punishment 
North KoreaCapital punishment legal 
NorwayNo capital punishment1948
OmanCapital punishment legal 
PakistanCapital punishment legal 
PalauNo capital punishment 
PanamaNo capital punishment1903
Papua New GuineaCapital punishment legal1950
ParaguayNo capital punishment1928
PeruNo capital punishment1979
PhilippinesNo capital punishment1976
PolandNo capital punishment1988
PortugalNo capital punishment1849
QatarCapital punishment legal 
RomaniaNo capital punishment1989
Russian FederationCapital punishment legal1999
RwandaCapital punishment legal1982
Saint Kitts and Nevis, Federation ofCapital punishment legal 
Saint LuciaCapital punishment legal 
Saint Vincent and the GrenadinesCapital punishment legal 
SamoaNo capital punishment 
San MarinoNo capital punishment1468
São Tomé and PríncipeNo capital punishment1990
Saudi ArabiaCapital punishment legal 
SenegalNo capital punishment1967
SerbiaNo capital punishment 
SeychellesNo capital punishment 
Sierra LeoneCapital punishment legal 
SingaporeCapital punishment legal 
SlovakiaNo capital punishment1990
SloveniaNo capital punishment1989
Solomon IslandsNo capital punishment1966
SomaliaCapital punishment legal 
South AfricaNo capital punishment1991
South KoreaCapital punishment legal 
SpainNo capital punishment1975
Sri LankaCapital punishment legal1976
SudanCapital punishment legal 
SurinameCapital punishment legal1982
SwazilandCapital punishment legal 
SwedenNo capital punishment1910
SwitzerlandNo capital punishment1944
SyriaCapital punishment legal 
TajikistanCapital punishment legal 
TanzaniaCapital punishment legal 
ThailandCapital punishment legal 
Timor-LesteNo capital punishment 
TogoCapital punishment legal 
TongaCapital punishment legal1982
Trinidad and TobagoCapital punishment legal 
TunisiaCapital punishment legal1991
TurkeyNo capital punishment1984
TurkmenistanNo capital punishment 
TuvaluNo capital punishment 
UgandaCapital punishment legal 
UkraineNo capital punishment 
United Arab EmiratesCapital punishment legal 
United KingdomNo capital punishment1964
United States of AmericaCapital punishment legal 
UruguayNo capital punishment1907
UzbekistanCapital punishment legal 
VanuatuNo capital punishment 
Vatican CityNo capital punishment 
VenezuelaNo capital punishment for any crimes1863
VietnamCapital punishment legal 
YemenCapital punishment legal 
ZambiaCapital punishment legal 
ZimbabweCapital punishment legal 

Table 1: Source – Amnesty International