The Death Penalty in Kenya: A punishment that has died out in practice

Kenya is abolitionist de facto, having not carried out an execution for 35 years. While the application of capital punishment has been restricted, by the abolition of the mandatory death penalty for murder in 2017 and by occasional mass commutations of death sentences to reduce numbers on death row, the death penalty remains in law. Courts continue to sentence defendants to death for murder, robbery with violence, attempted robbery with violence, and for treason, and today there are around 600 people on death row.

In 2018, the Kenyan Law Commission recommended that the death penalty should be abolished but governments have repeatedly argued that that abolition is not supported by the will of the Kenyan people. Rigorous research launched today in Nairobi suggests that this is no longer the case, if indeed it ever was.

In 2021, The Death Penalty Project and the Kenya National Commission on Human Rights commissioned the Death Penalty Research Unit to carry out research on attitudes towards the death penalty. A representative sample of 1,672 people from across Kenya were interviewed as well as 42 ‘opinion formers’ – people who have jurisdiction over part of the criminal process or who are considered to be influential in shaping, or responding to, public opinion: representatives from social justice centres, civil society organisations, advocates, senior government officials, representatives of the media, elders, and religious leaders.

These studies sought to understand the public and opinion formers’ views on the death penalty, and their rationales for those views, by considering the factors that influence opinions, including their knowledge about the administration of the criminal justice system. They also explored the extent to which respondents’ views are fixed or changeable, depending on the information provided; as well as their likely responses to changes in penal policy.

The research found considerable support for abolition among opinion formers (90%). Taking into account the strength of opinion, this represents the highest level of support for abolition across all studies of opinion formers commissioned by The Death Penalty Project.[i]

Only half (51%) of the Kenyan public expressed support for retention of the death penalty, and only a third (32%) felt that it should ‘definitely be kept’. This shows lower support for capital punishment among Kenyans than citizens of Zimbabwe, another abolitionist de facto country.

Rationales across both the public and opinion formers were very similar. Those in favour of the death penalty believed it was necessary to deter crime and deliver retribution to victims’ families. Those against the death penalty believed that criminals deserved the opportunity for rehabilitation but they were also worried about the risk of sentencing to death someone who has been wrongfully convicted, with many seeing the death penalty as an abuse of human rights.

The majority of opinion formers had low levels of trust in the Kenyan criminal justice system to offer adequate safeguards for suspects and defendants. Almost all (88%) thought that wrongful convictions happened regularly and more than half believed that suspects were never, or only rarely, treated fairly by the police. Only a third thought that prosecutors could usually or always be trusted to ensure that suspects are treated fairly.

Respondents from the Kenyan public had similarly low levels of trust. Almost two-thirds felt that people are ‘often’ or ‘always’ treated unequally before the law and only one in ten fully trusted the police. Almost two-thirds of the public thought that ‘many’ or ‘some’ innocent people have been sentenced to death in Kenya.

Knowing that innocent people may be executed shifts views on the death penalty. When retentionists among the public were asked if they would still support the death penalty if it was proven to their satisfaction that innocent people have sometimes been executed, 40% said they would shift their support in favour of abolition under such conditions. In other words, support for retention dropped from 51% to 28% among the public when people were worried about wrongful convictions and executions, demonstrating the power of innocence to sway public opinion on the death penalty.

Retentionists in other surveys commissioned by The Death Penalty Project have shifted their views on the death penalty when they have discovered that a high proportion of nations around the world have now abolished the death penalty. In this survey of the public, retentionists were informed that 17 countries in Sub-Saharan Africa had abolished the death penalty and asked whether Kenya should follow suit: 30% said yes, while 10% were unsure. In other words, support for retention dropped from 51% to 31% with knowledge about abolition across neighbouring countries.

People’s views are often not fixed, with initial support for capital punishment often changeable; it can shift in response to experiences, to new information, to concerns about injustice, and to consideration of actual cases. While the public will say they want harsher punishments as a reaction to serious crimes, when presented with actual sentencing scenarios, they are considerably less punitive. 

We presented participants in the public survey with six case scenarios, allowing for systematically varying factors and analysing their effect on people’s decisions about the appropriateness of the death penalty for certain offenders. In all cases, support for the death penalty was much lower in real cases than as an abstract concept. For example, in one very typical scenario about a robbery in a shop that results in death, support for the imposition of the death penalty dropped from 51% to 32%. Furthermore, when people were told that the offender had no prior convictions, support for the death penalty dropped to just 25%.

We sought information on the extent to which people think that the death penalty is a solution to the problem of crime. Respondents were asked to select the top three measures most likely to reduce violent crimes leading to death in Kenya. Among both opinion formers and the public, the vast majority thought the most important solutions were better moral education of young people and reducing poverty, with more effective policing being the third choice. Only a handful chose more executions or more death sentences, preferring social justice and educative measures. These findings align with responses to opinion research with the public and with opinion formers commissioned by The Death Penalty Project in Indonesia, Malaysia, the Eastern Caribbean, Zimbabwe and Taiwan.

Not surprisingly, given almost all opinion formers were in favour of abolition, most said they would support an Act of Parliament to abolish the death penalty. Furthermore, three-quarters felt that the public would accept abolition, even if some people might not initially want it. Perhaps most strikingly, our interviews with the public revealed that of the 51% who were initially against abolition, the majority were clear that they would accept abolition as government policy, making the case for continued retention increasingly hard to justify.

In Kenya, support for the death penalty is relatively low. Views are malleable, with many factors militating against support. If the public was more aware of these factors, the overall rate of support would decline quite dramatically. Clearly, there is nothing in our research that should deter the government of Kenya from abolishing a punishment that has, in any event, died out in practice.

The two parts of the report The Death Penalty in Kenya: A Punishment that has Died Out in Practice can be read in full on The DPP website here. 

Carolyn Hoyle is Professor of Criminology in the Centre for Criminology, University of Oxford and Director of the Death Penalty Research Unit (DPRU). Parvais Jabbar is Co-Executive Director of The Death Penalty Project.