Kenyan Supreme Court Declares Mandatory Death Penalty Unconstitutional

The mandatory death penalty violates fundamental human rights the Supreme Court of Kenya has ruled today in a historic judgment that will affect thousands of prisoners.

Prior to the judgment, any person convicted of murder, or robbery with violence, in Kenya would automatically receive the death penalty, without any consideration of the individual circumstances of their case. The Death Penalty Project has been litigating this issue in Kenya for over a decade, arguing that depriving judges of discretion over whether to impose a death sentence violates the right to a fair trial and amounts to an arbitrary deprivation of life.

The Supreme Court judgment finally determines the issue in the Kenyan courts. Contradictory rulings passed by the Court of Appeal had created legal confusion over the status of the mandatory death penalty, adding to the agony of those on death row waiting to find out whether their death sentences would be quashed.

The judgment means that new sentencing procedures will now have to be adopted in serious criminal proceedings in Kenya. For the first time 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.

Parvais Jabbar, Co-Executive Director of the Death Penalty Project says:

“We would like to congratulate the Supreme Court on this momentous decision. This result comes at the end of many years of dogged persistence and collaboration with dedicated lawyers and NGOs in Kenya. Over the past twenty years there has been a significant global movement away from the mandatory death penalty, recognising it as a cruel and inhuman punishment incompatible with fundamental human rights. Kenya will be the 12th country where we have successfully challenged the constitutionality of this archaic law. The decision will have a huge impact, not only on the thousands of prisoners it immediately affects in Kenya, but we hope it will also pave the way for further reform of the death penalty within Kenya and the Africa region more widely.”

Note to Editors

The Death Penalty Project has been involved in legal challenges to the mandatory death penalty since 2008 (Michael Jimmy Obuoka v Republic [2008] and Godfrey Ngotho Mutiso v Republic [2010]). UK barristers Joseph Middleton and Sir Keir Starmer QC, Doughty Street Chambers have provided pro-bono legal advice and assistance over the years and Joseph Middleton appeared before the Supreme Court of Kenya. From the beginning we have worked closely with Kenyan lawyers Timothy Bryant, Gerry Gitonga and William Wameyo. In this latest challenge, Francis Karioko Muruatetu & Wilson Thirimbu Mwangi v Republic [Writ Petition No.15 of 2015], The Death Penalty Project, as international experts on the death penalty, was admitted as amicus curiae before the Supreme Court, along with local NGO’s Katiba Institute, Legal Resources Foundation, the Kenyan National Commission Human Rights, and the International Commission of Jurists, Kenya.