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With the help of judicial decisions, explain the imposition of the death penalty of the current criminal law in Kenya

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Introduction

The death penalty is a highly contentious issue in Kenya, with strong arguments both for and against its application. This response will delve into the legal framework surrounding the death penalty in Kenya, drawing upon relevant constitutional provisions, statutory laws, and judicial pronouncements. The analysis will explore the current legal position on the imposition of the death penalty, examining the circumstances under which it can be imposed and the legal challenges it faces.

Legal Framework 1.1 Constitutional Provisions 1.2 Statutory Provisions
Judicial Decisions 2.1 Landmark Cases 2.2 Interpretation of the Law
Challenges to the Death Penalty 3.1 Constitutional Challenges 3.2 International Law
Conclusion

1. Legal Framework

1.1 Constitutional Provisions

The Constitution of Kenya, 2010, provides the foundation for the legal framework surrounding the death penalty. Article 26(1) of the Constitution states that "Every person has the inherent right to life." However, Article 26(2) provides an exception to this right, stating that "No person shall be deprived of life intentionally except in the execution of a sentence of a court in respect of a criminal offence under the law in force at the time the offence was committed."

Source: Constitution of Kenya, 2010, Article 26(1) and (2)

1.2 Statutory Provisions

The Penal Code, Cap 63, Laws of Kenya, outlines the specific offenses for which the death penalty can be imposed. Section 203 of the Penal Code states that "Any person who commits murder shall be sentenced to death."

Source: Penal Code, Cap 63, Laws of Kenya, Section 203

2. Judicial Decisions

2.1 Landmark Cases

The Kenyan judiciary has played a significant role in shaping the application of the death penalty. Several landmark cases have provided crucial interpretations of the law and its application.

Francis Karioko Muruatetu v. Republic (2017): This case challenged the mandatory nature of the death penalty for murder, arguing that it violated the right to a fair trial and the right to life. The Supreme Court ruled that the mandatory death penalty for murder was unconstitutional, holding that judges should have discretion in sentencing.
- Source: Francis Karioko Muruatetu v. Republic, [2017] eKLR
Republic v. John Njuguna Kamau (2018): This case further clarified the application of the death penalty, emphasizing the need for individualized sentencing and the consideration of mitigating factors. The Court of Appeal held that the death penalty should only be imposed in the most serious cases of murder, where there are no mitigating factors.
- Source: Republic v. John Njuguna Kamau, [2018] eKLR

2.2 Interpretation of the Law

Judicial decisions have consistently emphasized the need for a nuanced approach to the imposition of the death penalty. The courts have recognized that the death penalty is a severe punishment and should only be imposed in exceptional circumstances.

Factors considered in sentencing: Courts have considered factors such as the nature of the offense, the circumstances surrounding the crime, the offender's character, and the possibility of rehabilitation when determining whether to impose the death penalty.
Mitigating factors: Courts have recognized that mitigating factors, such as provocation, diminished responsibility, or remorse, can justify a lesser sentence than the death penalty.
Discretion in sentencing: The Supreme Court's decision in Muruatetu v. Republic has established that judges have discretion in sentencing, meaning they are not bound to impose the death penalty in every case of murder.

3. Challenges to the Death Penalty

3.1 Constitutional Challenges

The death penalty has faced significant constitutional challenges in Kenya. The right to life, enshrined in Article 26 of the Constitution, has been used as a basis for arguing against the death penalty.

Right to life: The right to life is considered a fundamental human right, and the death penalty is seen as a violation of this right.
Fair trial: The mandatory nature of the death penalty for murder was challenged on the grounds that it violated the right to a fair trial, as it did not allow for individualized sentencing and the consideration of mitigating factors.

3.2 International Law

Kenya is a signatory to several international human rights treaties that prohibit or restrict the use of the death penalty.

International Covenant on Civil and Political Rights (ICCPR): Article 6(2) of the ICCPR states that "In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes."
African Charter on Human and Peoples' Rights: Article 4 of the African Charter states that "Every individual shall have the right to life."

4. Conclusion

The death penalty in Kenya is a complex issue with a long history. The legal framework surrounding the death penalty has evolved over time, with judicial decisions playing a crucial role in shaping its application. While the death penalty remains on the statute books, its application has been significantly restricted by constitutional challenges and international law. The Kenyan judiciary has consistently emphasized the need for a nuanced approach to the imposition of the death penalty, recognizing that it is a severe punishment that should only be imposed in exceptional circumstances. The future of the death penalty in Kenya remains uncertain, with ongoing debates and legal challenges.