Just as it has been elsewhere, the death penalty has become a thorny issue in Kenya, eliciting an intense and emotive debate over the course of many decades. Today, Kenya has an unofficial moratorium on executions (the last was carried out in 1987), which raises critical questions about the continued justification of death penalty laws and their place in the modern constitutional democratic system. The most important turning point in recent years has been the jurisprudential shift heralded by the Supreme Court’s landmark decision in Muruatetu v Republic (2017), in which the Court found that the mandatory nature of the death sentence was unconstitutional. The prolonged moratorium, coupled with Kenya's transformative 2010 Constitution and emerging jurisprudence, presents a compelling context for critically re-evaluating the place of capital punishment in the nation’s legal framework.
Capital punishment remains enshrined in Kenyan law, particularly under the Penal Code, for offences such as murder, robbery with violence and treason. Death sentences continue to be handed down, meaning that individuals are detained on death row, awaiting execution. However, attachment to implementing the punishment has waned over the years, as shown by the repeated use of mass death row commutations by Kenyan leaders. In 2009, then President Mwai Kibaki commuted the sentences of 4,000 death-sentenced prisoners; in 2016, then President Uhuru Kenyatta commuted those of 2,700; and in 2023, President William Ruto commuted those of several hundred more. Furthermore, the courts have not shied away from involvement in the matter, leading to questions about the constitutionality of the punishment and its appropriateness in modern day Kenya. The shift away from carrying out executions reflects a broader regional and global trend away from the death penalty.
Judicial developments have also significantly reshaped the legal landscape concerning capital punishment in Kenya. As noted, the Muruatetu judgment in 2017 provided a watershed moment in Kenyan jurisprudence. In arriving at its finding that the mandatory death penalty was unconstitutional, the Supreme Court opened the gateway for individualized sentencing and a broader reconsideration of the death penalty’s necessity and fairness. It should be noted however that the decision has led to some lack of clarity about the state of the law. The case at issue in Muruatetu involved an individual convicted of the offence of murder, yet the ruling on mandatory sentencing was initially understood to apply across all capital offences. However, in 2021 the Supreme Court issued directions stating that Muruatetu applied only to murder. As Chris Kerkering of the Katiba Institute notes: “Since then, lower courts dealing with robbery with violence and attempted robbery with violence offences have been much more likely to impose the mandatory death penalty.” Nonetheless, the decision remains a very constitutionally significant one.
Notwithstanding these developments, the possibility of executions remains in principle. It is now 38 years since the last execution, leading Kenya to be categorized by the UN as an ‘abolitionist de facto’ (ADF) state: those states that retain the death penalty in law but have not carried out an execution for 10 years or more. Yet the widespread idea that once a country becomes ADF, it is on an inevitable path to de jure abolition, is not the case everywhere. In fact, when a jurisdiction retains the death penalty on its statute book, there will always be a risk that executions could resume if political circumstances change. As Hood and Hoyle (2015) observe, “[the punishment’s] dormant existence in law can readily be translated into a practical reality in response to a heightened fear of crime or political instability, such that the practice of executing offenders can be revived after decades without use.” In Myanmar, for example, there were four executions in 2022, the first since the 1980s; in 2020, 13 executions were carried out at the federal level in the U.S. in the final months of the first Trump administration, the first since 2003.
Kenya’s death penalty laws were originally a colonial imposition. Under British colonial rule, even more so than in other British colonial territories, the use of the death penalty formed a core part of the governance structures, premised on the belief that punitive punishments of this kind were necessary to control the masses and impose order in the absence of which, anarchy, violence and chaos would flourish. During the Mau Mau uprising of 1952-58, over 2,500 people faced capital charges, around half of whom were executed. Reflecting on this period, historian David Anderson writes: “State judicial executions, the highest form of institutional violence available under the rule of law, was ruthlessly deployed in suppression of the rebellion.” Yet despite Kenya achieving independence from colonial rule more than 60 years ago, and now having in place three functional arms of government and one of the most progressive, open and democratic constitutions of our time, removal of this colonial legacy has proven challenging.
There is now a growing national discourse in Kenya questioning the validity of the retention of death penalty laws. Kenya’s Constitution entrenches a robust and thorough Bill of Rights that forms the foundation of many domestic arguments against the death penalty, based on the punishment’s irreversibility, frequent injustice and disproportionate impact on the marginalized and poor. In 2019, a national-level Taskforce on the Review of the Mandatory Death Penalty, established by the Muruatetu ruling, recommended complete abolition of capital punishment, citing human rights concerns and public opinion trends. It explored the legal inconsistencies of the death penalty with the 2010 Constitution, regional and global abolitionist trends, and the moral and practical grounds for abolition. In doing so, it offered a comprehensive case for legislative and judicial reform towards full abolition.
Human rights advocates at the national, regional and international levels have been instrumental in encouraging states to reconsider their stance on the death penalty, leading to a growing international consensus against its use, as evidenced by the increasing number of abolitionist states. Many states have now enshrined progressive provisions on the right to life, making preservation and protection of life a fundamental obligation for all organs of the state. On 31 December 2024, President Emmerson Mnangagwa of Zimbabwe assented to legislation to abolish the death penalty, making Zimbabwe the 128th abolitionist state worldwide and the 30th in Africa. Prior to its de jure abolition, Zimbabwe had also been an ADF state, having not executed for almost 20 years. Zimbabwe’s abolition constitutes a major milestone in the continent’s accelerating momentum towards abolition – following abolition in Central African Republic, Chad, Equatorial Guinea, Ghana, Sierra Leone and Zambia since 2020.
The current ‘wave of abolition’ across Africa provides inspiration for abolitionist advocates in Kenya to continue their efforts to achieve abolition in law as well as in practice. Recent research has found that a majority of the Kenyan public would accept the government’s adoption of a policy of full abolition, so public opinion is no barrier to taking this final, crucial step. Ultimately, the death penalty in Kenya stands incompatible with modern conceptions of justice, dignity and constitutional human rights – it undermines the sanctity of life, risks irreversible judicial errors and disproportionately affects the marginalized. Instead, Kenya must now embrace progressive penal reforms that uphold rehabilitation, restorative justice and the right to life, without exception.
| Kola Muwanga is a final-year LLB student at the School of Law, University of Embu, Kenya. This blog post is based on his recently completed undergraduate dissertation, titled ‘Towards the abolition of the death penalty in Kenya: A constitutional and human rights-based analysis.’ |
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