On 14 December, 2017 the Supreme Court of Kenya, Francis Karioko Muruatetu & another v Republic [2017] eKLR, delivered a judgment that had the effect of outlawing the mandatory nature of the death sentence. In the said petition, the petitioners Francis Karioko Muruatetu and Wilson Thirimbu Mwangi, were death row convicts who had been in jail for the last 14 years. They filed the petition before the Supreme Court asking the court to scrap the mandatory death penalty from the Kenyan law. The duo were convicted for the murder of businessman Lawrence Githinji Magondu.
The Supreme Court findings
In determining the petition, the Supreme Court made the following findings:
- Declared the mandatory nature of the death sentence as provided for under Section 204 of the Penal Code unconstitutional.
- Remitted to the High Court the case for rehearing on sentence only, in conformity with the judgment.
- Directed the Attorney General, the Director of Public Prosecutions and other relevant agencies to prepare a detailed professional review in the context of the Judgment and order, with a view to setting up a framework to deal with sentence re-hearing of cases similar to that of the petitioners.
- Directed that any necessary amendments, formulations and enactment of statute law, be done to give effect to the judgment and on the parameters of what ought to constitute life imprisonment.
The Supreme Court’s judgment and reasoning
The Supreme Court of Kenya in the Muruatetu case confirmed that the death penalty per se is not unconstitutional, however noted that the United Nations Commission on Human Rights has recommended the abolition of the death sentence as a mandatory sentence. With respect therefore to the mandatory nature of the death penalty in section 204 of the Penal Code, the Court held that the imposition of a sentence of death without considering mitigating circumstances violates the right to a fair trial guaranteed in Article 50(2) of the COK 2010, which right may not be limited pursuant to Article 25.
Specifically, the Court stated that; “Section 204 of the Penal Code deprives the Court of the use of judicial discretion in a matter of life and death. Such law can only be regarded as harsh, unjust and unfair. The mandatory nature deprives the Courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in appropriate cases. Where a court listens to mitigating circumstances but has, nonetheless, to impose a set sentence, the sentence imposed fails to conform to the tenets of fair trial that accrue to accused persons under Articles 25 of the Constitution which is an a absolute right.’’
Accordingly, the Court held that due process requires a sentencing court to consider whether the death sentence is appropriate in light of the circumstances of the offence and the offender. Noting that Kenya has recently issued the guidelines on sentencing that confirms the mandatory nature of the death penalty, the Court also held that the relevant sections of the policy are no longer applicable, and instead set out new guidelines with respect to mitigating factors that a sentencing court must take into consideration in determining whether to impose a death sentence or some term of imprisonment upon conviction for murder.
Recommended criteria in sentencing
Reiterating that judicial discretion is key to achieve a fair trial, the Court clarified that the following criteria are advisory and intended to promote transparency and consistency in sentencing:
- Age of the offender.
- Being a first offender.
- Whether the offender pleaded guilty.
- Character and record of the offender.
- Commission of the offence in response to gender-based violence.
- Remorsefulness of the offender.
- The possibility of reform and social re-adaptation of the offender.
- Any other factor that the Court considers relevant.
Conclusion
In summary, the decision by the Supreme Court was to the effect that death sentence is still lawful but not mandatory and that new sentencing procedures will now have to be adopted in serious criminal proceedings in Kenya. This means that judges will be able to exercise discretion over whether the death penalty should be imposed, taking into account all mitigating factors, such as the mental health of the offender, the circumstances of their offence and good character evidence, to ensure that the sentence imposed is proportionate.
In the recent past, some courts have applied the Muruatetu Case mutatis mutandi in offences attracting life imprisonment. Section 26 of the Penal Code sets parameters for a sentence of imprisonment, and specifically provides that in the absence of a mandatory sentence, a person liable to life imprisonment may be sentenced to any shorter term. The Penal Code does not however specify or clarify the meaning of ‘life’ in respect of life imprisonment.
Until the Supreme Court’s decision in Muruatetu, life imprisonment in Kenya has been for an indeterminate period, i.e. the natural life of the convicted person. There are twenty-nine (29) offences in the Penal Code for which a convicted person is liable to imprisonment for life. There are a further eight offences in the Sexual Offences Act that provide for a maximum, and in some cases mandatory, sentence of imprisonment for life. Numerous other statutes also contain offences for which a convicted person is or may be liable to imprisonment for life.
