KENYA: HIGH COURT FINDS MANDATORY DEATH SENTENCE UNCONSTITUTIONAL

September 24, 2016: The High Court in Kenya has ruled that the mandatory death sentence in relation to capital offence is unconstitutional.
A petition was filed by APP law student, Wilson Kinyua, and 11 other death row prisoners serving their sentences at Kamiti Maximum Security Prison, challenging conflicting sentences given to similar offences resulting in a breach of their right to be treated equally.
In a landmark judgement delivered on 15 September 2016, it was ruled that sections of the law do not meet the constitutional threshold of setting out precise and distinct differentiating degrees of aggravation of the offence of robbery and attempted robbery to adequately answer to charges and to prepare a defence.
The petitioners, led by Wilson, argued that for the death sentence to apply one should first have the opportunity to defend oneself following the case hearing through the process of mitigation.
The favourable ruling means that mitigating factors and other pre-sentencing requirements have to be received and considered by the courts in order for a fair trial to take place – abolishing the mandatory death sentence currently prescribed for a capital offence.
The court, however, did not rule in favour of the abolition of the death sentence across the board stating that “the death sentence is not a cruel, inhuman and degrading punishment. However, it just cannot be meted to any person convicted of a capital offence.” This was clearly a disappointing outcome for Wilson et al, however, extraordinary steps have been made to change the law in such a way that the positive impact will be felt throughout the prison community.
The judgement has also been suspended for 18 months in order for the law to be reviewed for the inconsistencies found and amended accordingly, a ruling that the petitioners wish to challenge, calling for an immediate resolution to their cases. (Sources: africanprisons.org, 24/09/2016)