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

Introduction

The imposition of the death penalty in Kenya is a subject of significant legal and moral debate. The death penalty is provided for under various statutes in Kenya, and its application has been the subject of numerous judicial decisions. This discussion will delve into the constitutional and statutory provisions governing the death penalty, as well as key judicial decisions that have shaped its application in Kenya.

Table of Contents

1. Constitutional Provisions

   • Article 26: Right to Life

   • Article 50: Fair Hearing

2. Statutory Provisions

   • Penal Code (Cap 63)

   • Criminal Procedure Code (Cap 75)

3. Judicial Decisions

   • Mutiso v. Republic (2010)

   • Muruatetu & Another v. Republic (2017)

   • Other Relevant Cases

4. Current Status and Future Directions

   • Presidential Commutations

   • Legislative Reforms

1. Constitutional Provisions

Article 26: Right to Life

• Article 26(1) of the Constitution of Kenya, 2010, guarantees every person the right to life.

• Article 26(3) provides that a person shall not be deprived of life intentionally, except to the extent authorized by the Constitution or other written law.

The Constitution thus recognizes the right to life but allows for exceptions where the law authorizes deprivation of life, which includes the death penalty.

Article 50: Fair Hearing

• Article 50(2) guarantees the right to a fair trial, which includes the right to be presumed innocent until proven guilty, the right to legal representation, and the right to appeal.

These provisions ensure that any imposition of the death penalty must follow due process and fair trial standards.

2. Statutory Provisions

Penal Code (Cap 63)

• Section 204 of the Penal Code prescribes the death penalty for the offense of murder.

• Section 40 prescribes the death penalty for treason.

• Section 296(2) prescribes the death penalty for robbery with violence.

These sections outline the specific offenses for which the death penalty may be imposed.

Criminal Procedure Code (Cap 75)

• Section 329 of the Criminal Procedure Code provides for the procedure to be followed in capital cases, including the requirement for a mandatory death sentence upon conviction for certain offenses.

3. Judicial Decisions

Mutiso v. Republic (2010)

• Case Citation: Mutiso v. Republic [2010] eKLR

• Decision: The Court of Appeal held that the mandatory death sentence for murder under Section 204 of the Penal Code was unconstitutional as it violated the right to a fair trial and the right to life. The court ruled that judges should have discretion in sentencing.

Muruatetu & Another v. Republic (2017)

• Case Citation: Francis Karioko Muruatetu & Another v. Republic [2017] eKLR

• Decision: The Supreme Court of Kenya declared the mandatory death penalty for murder unconstitutional. The court held that the mandatory nature of the death penalty deprived judges of the discretion to consider mitigating circumstances, thus violating the right to a fair trial.

The Muruatetu decision has had a profound impact on the application of the death penalty in Kenya, leading to the re-sentencing of many individuals previously sentenced to death.

Other Relevant Cases

• Joseph Njuguna Mwaura & Others v. Republic: The Court of Appeal extended the principles of the Muruatetu decision to robbery with violence cases, allowing for judicial discretion in sentencing.

• William Okungu Kittiny v. Republic: The Court of Appeal further affirmed that the principles in Muruatetu apply to all capital offenses, not just murder.

4. Current Status and Future Directions

Presidential Commutations

• In 2016, President Uhuru Kenyatta commuted the death sentences of all death row inmates to life imprisonment, affecting over 2,700 individuals. This move was seen as a significant step towards the abolition of the death penalty in Kenya.

Legislative Reforms

• There have been calls for legislative reforms to align the Penal Code and the Criminal Procedure Code with the principles established in the Muruatetu decision. This includes the removal of mandatory death sentences and the introduction of judicial discretion in capital cases.

Conclusion

The imposition of the death penalty in Kenya is governed by constitutional and statutory provisions, with significant influence from judicial decisions. The landmark Muruatetu decision has fundamentally altered the landscape of capital punishment in Kenya, emphasizing the need for judicial discretion and the consideration of mitigating circumstances. While the death penalty remains on the statute books, there is a clear trend towards its reduced application and potential abolition in the future.

Answered by mwakili.com

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