The recent sentencing of Ruth Kamande to death sentence following her conviction for murder of her boyfriend has sparked debate. The judge who handled the matter found Kamande guilty of the offence in May.
However, it is the sentencing this month that raised hullabaloo within the country. The initial reaction from one section was to raise issue with the decision of Justice Jessie Lesiit to sentence her to death. The gist of the argument was that the offence was both unconstitutional and unsustainable. The unconstitutionality debate was anchored on the decision of the Supreme Court in 2017 declaring the mandatory death sentence unconstitutional.
The case decided by the Supreme Court arose from an appeal by two convicts, Francis Karioko Muruatetu and Wilson Thirimbu Mwangi, against their sentencing to death. The gist of their case was that the requirement that one convicted of murder must be sentenced to death without any other option is unconstitutional.
It denies the court the option of exercising their discretion in sentencing. This is the point that the Supreme Court agreed with. Consequently, the court pointed out that one who is found guilty of murder can be sentenced to a lesser term depending on the circumstances of the case.
The court did not declare the death sentence unconstitutional. Consequently, the judge in the case of Kamande had the right to either sentence her to death or to a lesser sentence. Her sentence may look unfair, but it is not against the Supreme Court decision.
However, it brings back the debate on whether we should continue having the death sentence in our laws. This was a point of contestation during the constitution making process. In the end, the country could not agree and did retain the death penalty. The Constitution contemplates that there are circumstances when life may be taken away.
In light of international conventions to which Kenya is a party and modern developments, it is important to ask hard questions on the continued relevance of this penalty. As we do so we have to be alive to the fact that there are many Kenyans who strongly believe that its existence acts as a deterrence and for those who commit the offence it is a fair punishment. It thus serves the retributive function of punishment.
This argument must, however, be weighed against several realities. Fundamentally, a punishment that is permanent in its nature offers no room for error. This is especially important when we take into account that life is sacrosanct. We should avoid giving powers to a human being, even if they are a judge, of taking the life of another by sentencing them to death.
In addition, punishment should not be about retribution only. A sound system should encourage rehabilitation much more. The reason why those that have served their sentences are released and reintegrated into society is based on the understanding that once someone has been punished, they need to be given a second chance. To convict them to death is take away the possibility of being rehabilitated.
Despite the continued existence of the death penalty in Kenyan laws, no execution has been undertaken since 1987. In essence, therefore the courts continue meting out punishment that is never implemented.
This explains the public comments in the Kamande case that the sentence should be commuted to a life sentence. The question must be why should courts issue sentences which do not get implemented and instead are changed to a life sentence by administrative action. Why not align our law to our practice?
The Supreme Court has given the country an opportunity for having this debate. It requires the legislative arm of government to make necessary enactments to effect the judgement, deal with the mandatory nature of the death sentence and debate what a life imprisonment should mean.
This latter one is derived from the fact that some countries have set a number of years for which those sentenced to life will serve in jail before being released. Parliament is to be aided in this task by both the Attorney General and the Kenya Law Reform Commission.
As Kenyans, we should seize this moment and robustly debate the merits and demerits of continuing to sentence people to death. This debate must be honest, inclusive and conclusive. The decision we make must be alive the policy rationale for punishing offenders and determine how successful the death penalty delivers on those aims. In doing so the interests of the victims, their families, the accused persons and the larger society have to be weighed. This must be done without emotions so that we can make a decision for posterity.
The Supreme Court already took the first step. However, there is still a distance to go in this issue.
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