Supreme Court: Mandatory death sentence unconstitutional

The Supreme Court has declared the mandatory death sentence for murder convicts as unconstitutional.

The court however said that the decision does not affect the validity of the death sentence.

“The mandatory nature of the death sentence as provided for under Section 204 of the Penal Code is hereby declared unconstitutional. For the avoidance of doubt, this order does not disturb the validity of the death sentence as contemplated under Article 26(3) of the Constitution,” the court ruled on Thursday, December 14.

The apex court further directed that the judgment be placed before the Speakers of the National Assembly and the Senate, the Attorney-General, and the Kenya Law Reform Commission, for any necessary amendments, formulation and enactment of statute law, to give effect to this judgment on the mandatory nature of the death sentence and the parameters of what ought constitute life imprisonment.

The court noted that Section 204 of the Penal Code is inconsistent with the Constitution and invalid to the extent that it provides for the mandatory death sentence for murder.

The decision means the death sentence is still lawful but not mandatory.

“For the avoidance of doubt, this decision does not outlaw the death penalty, which is still applicable as a discretionary maximum punishment,” reads the judgement.

The court also ruled that convicts sentenced pursuant to Section 204 are not accorded equal treatment to convicts who are sentenced under other sections of the Penal Code that do not mandate a death sentence. The judges also said that refusing or denying a convict facing the death sentence, to be heard in mitigation when those facing lesser sentences are allowed to be heard in mitigation is clearly unjustifiable discrimination and unfair.

“This is repugnant to the principle of equality before the law. Accordingly, Section 204 of the Penal Code violates Article 27 of the Constitution as well,” the court heard.

Murder and robbery with violence are the offences in the Kenyan criminal law that attract a death penalty.

The judgment was issued in a case in which two death row convicts, Francis Karioko Muruatetu and Wilson Thirimbu Mwangi, who have been in jail for the last 14 years asked the apex court to scrap mandatory death penalty from the Kenyan law.

For their case, the court asked the two to go back to the High Court for re-hearing on sentence only, on a priority basis, and in conformity with the judgment.