Death Penalty Database

Kenya

Information current as of: June 13, 2014

General

Official Country Name

Republic of Kenya (Kenya). [1]

Geographical Region

Africa (Eastern Africa). [2]

Death Penalty Law Status

Abolitionist de facto. Kenya has not carried out an execution since 1987. [3]

Methods of Execution

Hanging.
According to the Prisons Act, executions are to be carried out by hanging. [4]

References

[1] BBC, Country Profiles: Kenya Profile, http://www.bbc.co.uk/news/world-africa-13681342, May 21, 2013.
[2] U.N., Composition of macro geographical (continental) regions, geographical sub-regions, and selected economic and other groupings, http://unstats.un.org/unsd/methods/m49/m49regin.htm, Oct. 31, 2013.
[3] United Nations Office of the High Commissioner for Human Rights, Committee Against Torture Examines Kenya, http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?LangID=E&NewsID=13337, May 16, 2013.
[4] Kenya Prisons Act, sec. 69, Laws of Kenya Rev. Ed. 2010 Ch. 90, Feb. 19, 1963, as updated through to Jul. 12, 2012.

Country Details

Language(s)

English and Kiswahili (Swahili). [1]

Population

42.7 million (U.N., 2012). [2]

Number of Individuals Currently Under Sentence of Death

At least 1,582.

The exact number of individuals is currently unknown, as the Kenyan government does not publish statistics relating to the death penalty and sentencing. However, in 2012, the United Nations Human Rights Committee noted that 1,582 convicts faced the death penalty. [3] There have been no reported executions since then.This number takes into account the mass commutation of August 2009, when the Kenyan government commuted the death sentences of all 4,000 prisoners then on death row to life imprisonment. [4]

Kenyan courts continue to hand down death sentences, but there is some dispute over how many. Amnesty reports a cautious number of new death sentences each year: 5 in 2010, 11 in 2011, and 21 in 2012. [5] Other non-governmental organizations report much larger numbers. For instance, Penal Reform International and the Foundation for Human Rights Initiative estimated that there were up to 2,000 people on death row in 2013. [6]

Annual Number of Reported Executions

Executions in 2017 to date (last updated on October 18, 2017)

0. [7]

Executions in 2016

0. [8]

Per capita execution rate in 2016

Executions in 2015

0. [9]

Per capita execution rate in 2015

0 executions.

Executions in 2014

0. [10]

Per capita execution rate in 2014

0 executions

Executions in 2013

0. [11]

Per capita execution rate in 2013

0 executions.

Executions in 2012

0. [12]

Per capita execution rate in 2012

0 executions.

Executions in 2011

0. [13]

Per capita execution rate in 2011

0 executions.

Executions in 2010

0. [14]

Executions in 2009

0. [15]

Executions in 2008

0. [16]

Executions in 2007

0. [17]

Year of Last Known Execution

1987. [18]

References

[1] The Constitutional of Kenya, art. 7(1), August 28, 2010.
[2] BBC, Country Profiles: Kenya Profile, http://www.bbc.co.uk/news/world-africa-13681342, May 21, 2013.
[3] U.N. ICCPR, Human Rights Committee, Concluding Observations of the Human Rights Committee: Kenya, para. 10, U.N. Doc. CCPR/C/KEN/CO/3, Aug. 31, 2012.
[4] EN/CO/3, Aug. 31, 2012.
[5] Amnesty Intl, Death Sentences and Executions in 2011, ACT 50/001/2012, Mar. 27, 2012. Amnesty Intl., Death Sentences and Executions in 2012, ACT 50/001/2012, Apr. 9, 2013. Amnesty Intl., Death Sentences and Executions in 2009, p. 23, ACT 50/001/2010, Mar. 30, 2010.
[6] Penal Reform International and Foundation for Human Rights Initiative, Alternative report to the UN Committee against Torture regarding the consideration of Kenya’s second report, p. 3, Apr. 15, 2013.
[7] DPW Executions and Death Sentences Monitor.
[8] Amnesty International, Death sentences and executions in 2016, ACT 50/5740/2017, Apr. 11, 2017.
[9] DPW Executions and Death Sentences Monitor.
[10] Amnesty Intl., Death Sentences and Executions in 2014, ACT 50/001/2015, Mar. 31, 2015.
[11] Amnesty Intl., Death Sentences and Executions in 2013, ACT 50/001/2014, Mar. 26, 2014.
[12] Amnesty Intl., Death Sentences and Executions in 2012, ACT 50/001/2012, Apr. 9, 2013.
[13] Amnesty Intl., Death Sentences and Executions in 2011, ACT 50/001/2012, http://www.amnesty.org/en/library/info/ACT50/001/2012/en, Mar. 27, 2012.
[14] Amnesty Intl., Death Sentences and Executions in 2010, p. 5, ACT 50/001/2011, Mar. 28, 2011.
[15] Amnesty Intl., Death Sentences and Executions in 2009, p. 23, ACT 50/001/2010, Mar. 30, 2010.
[16] Amnesty Intl., Death Sentences and Executions in 2008, pp. 22-23, ACT 50/003/2009, Mar. 24, 2009.
[17] Amnesty Intl., Death Sentences and Executions in 2007, p. 6, ACT 50/001/2008, Apr. 15, 2008.
[18] United Nations Office of the High Commissioner for Human Rights, Committee Against Torture Examines Kenya, http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?LangID=E&NewsID=13337, May 16, 2013.

Crimes and Offenders Punishable By Death

Crimes Punishable by Death

Murder.
Murder is punishable by death. The Penal Code states “any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder.” [1] It goes on to stipulate, “[a]ny person convicted of murder shall be sentenced to death.” [2] However, under Mutiso v. Republic, “shall” is interpreted permissively, and the gravity of a murder is a factor to be considered in determining whether to sentence an individual to death, so the death penalty might be restricted to aggravated murder. [3]

Other Offenses Resulting in Death.
Under Kenya’s definition of murder, prosecutors do need to prove causation, but do not need to prove whether a killing was intentional if they can prove the offender had the intent to commit a felony or to facilitate the flight or escape of an individual who had committed a felony. [4]

Robbery Not Resulting in Death.
Robbery is punishable by death under the Penal Code. [5] The definition of robbery requires that the perpetrator use or threaten to use violence while stealing. [6] If robbery is committed while using a weapon, with a gang, or results in actual personal violence to the victim, it is punishable by death. [7] The death penalty for armed robbery was challenged in Joseph Njuguna Mwaura & 2 Others vs. Republic. [8] In 2013, the High Court in Nairobi held that the death penalty was not too severe a sentence for armed robbery and was therefore constitutional. [9] The Supreme Court is expected to make a decisive statement on the matter.

Treason.
Treason is punishable by death. A variety of acts, including sedition, intended to undermine or overthrow the Government, harm or kill the President or instigate or engage in war against the Republic, are deemed acts of treason. [10] Under the Penal Code, “[a]ny person who is guilty of the offence of treason shall be sentenced to death.” [11]

Military Offenses Not Resulting in Death.
Pursuant to the Kenya Defence Forces Act, treachery, spying, aiding the enemy, assisting the enemy with intelligence information, misconduct in action by others, mutiny, and unlawfully advocating for a change of government are all death-eligible offenses for members of the Kenya Defence Forces. [12]

Other Offenses Not Resulting in Death.
Administering an oath purported to bind a person to commit a capital offense: Under the Penal Code, “[a]ny person who administers an oath, or engagement in the nature of an oath, purporting to bind the person who takes it to commit any offence, punishable with death, is guilty of a¬ felony and shall be sentenced to death.” [13]

Does the country have a mandatory death penalty?

Unsure. Despite a significant decision striking down the mandatory death penalty for murder in 2010, the Penal Code retains mandatory death sentences. [14] In Mutiso v. The Republic, the Court of Appeal at Mombasa reasoned that such a punishment violated the right to life and protections against arbitrariness and inhuman treatment. This reasoning is equally applicable to other death-eligible offenses. [15] Although the Mutiso judgement only referred to murder, the Court of Appeal stated that the holding might be applicable to other capital offenses. [16]

Despite the judgment in Mutiso, in 2013 the Court of Appeal at Nairobi in Joseph Njuguna Mwaura & 2 Others vs. Republic upheld the mandatory death penalty for armed robbery, [17] holding that it was up to the legislature to decide whether or not to retain the mandatory death penalty. [18] The Supreme Court is expected to resolve the conflict between Mutiso and Mwaura.

For Which Offenses, If Any, Is a Mandatory Death Sentence Imposed?

Robbery Not Resulting in Death.
The Penal Code employs mandatory sentencing language for the offense of robbery committed with violence or the threat of violence, by a gang, or resulting in personal harm (“shall be sentenced to death”). [19] Although the Court of Appeal at Mombasa in Mutiso v. Republic determined that the mandatory death penalty for murder violates the protections against arbitrariness and inhuman treatment, [20] the Court of Appeal at Nairobi in Joseph Njuguna Mwaura & 2 Others vs. Republic upheld the mandatory death penalty for armed robbery. [21] These conflicting decisions will presumably be resolved in a challenge to the mandatory death penalty that is currently pending before the Kenyan Supreme Court.

Treason.
Section 40(3) of the Penal Code uses mandatory language when it provides: “[a]ny person who is guilty of the offence of treason shall be sentenced to death.” [22]

Other Offenses Not Resulting in Death.
Administering an oath purported to bind a person to commit a capital offence: [23] The Penal Code uses mandatory language when it provides: “[a]ny person who administers an oath, or engagement in the nature of an oath, purporting to bind the person who takes it to commit any offence, punishable with death, is guilty of a felony and shall be sentenced to death.” [24]

Comments.
The Court of Appeal at Mombasa in Mutiso v. Republic determined that the mandatory death penalty for murder violates the protections against arbitrariness and inhuman treatment, [25] using language that equally applies to other capital offenses. The Court of Appeal at Nairobi, however, in Joseph Njuguna Mwaura & 2 Others vs. Republic upheld the mandatory death penalty for armed robbery, ruling that the mandatory nature of the death penalty should be decided by the legislature. [26] These conflicting decisions will presumably be resolved in a challenge to the mandatory death penalty that is currently pending before the Kenyan Supreme Court. The future constitutionality of the mandatory of the death penalty is therefore uncertain.

Crimes For Which Individuals Have Been Executed Since January 2008:

The Kenyan government has not carried out any executions since 1987. [27]

Categories of Offenders Excluded From the Death Penalty:

Individuals Below Age 18 At Time of Crime.
Juveniles may not be sentenced to death in Kenya. The Penal Code of Kenya states that the death sentence shall not be pronounced on anyone who was under the age of 18 at the time the offense was committed. [28] In lieu of a death sentence, the offender shall be “detained during the President’s pleasure…in such place and under such conditions as the President may direct.” [29] Kenya is also a party to the Convention on the Rights of the Child [30] and the African Charter on the Rights and Welfare of the Child, [31] which prohibit the execution of juveniles.

Pregnant Women.
Pregnant women may not be sentenced to death. When a woman convicted of a death eligible offense is found to be pregnant. “the sentence to be passed on her shall be a sentence of imprisonment for life instead of sentence of death.” [32]

Mentally Ill.
Though the Penal Code does not specifically discuss mental illness as mitigation for death eligible offenses, the Code provides for an insanity defense: “[a] person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is through any disease affecting his mind incapable of understanding what he is doing, or of knowing that he ought not to do the act or make the omission.” [33] Consequently, if, at trial, the offender is found to have been insane at the time of the offense, “the court shall make a special finding…that the accused was guilty…but was insane.” [34] The President may then order the person “detained in a mental hospital, prison or other suitable place of safe custody.” [35] Additionally, the court shall postpone criminal proceedings if the accused is “of unsound mind and consequently incapable of making his defence.” [36] Therefore, a person deemed to be insane at the time of the offense may escape capital punishment. However, we found no legal provisions excluding the death penalty for prisoners who are mentally ill at the time their sentence is to be carried out.

References

[1] Kenya Penal Code, secs. 203, 206(a-b), Laws of Kenya Rev. Ed. 2010 Ch. 63, Aug. 1, 1930, as updated through to Jul. 12, 2012.
[2] Kenya Penal Code, sec. 204, Laws of Kenya Rev. Ed. 2010 Ch. 63, Aug. 1, 1930, as updated through to Jul. 12, 2012.
[3] Mutiso v. Republic, Criminal Appeal No. 17 of 2008, paras. 28, 33-34, 36-38, Court of Appeal at Mombasa, Jul. 30, 2010.
[4] Kenya Penal Code, secs. 203, 204, 206(c-d), Laws of Kenya Rev. Ed. 2010 Ch. 63, Aug. 1, 1930, as updated through to Jul. 12, 2012.
[5] Kenya Penal Code, secs. 296(2), 297(2), Laws of Kenya Rev. Ed. 2010 Ch. 63, Aug. 1, 1930, as updated through to Jul. 12, 2012.
[6] Kenya Penal Code, sec. 295, Laws of Kenya Rev. Ed. 2010 Ch. 63, Aug. 1, 1930, as updated through to Jul. 12, 2012.
[7] Kenya Penal Code, secs. 296(2), 297(2), Laws of Kenya Rev. Ed. 2010 Ch. 63, Aug. 1, 1930, as updated through to Jul. 12, 2012.
[8] Joseph Njuguna Mwaura & 2 Others vs. Republic, Criminal Appeal No. 5 of 2008, Court of Appeal at Nairobi, Oct. 18, 2013.
[9] Joseph Njuguna Mwaura & 2 Others vs. Republic, Criminal Appeal No. 5 of 2008, p. 14, Court of Appeal at Nairobi, Oct. 18, 2013.
[10] Kenya Penal Code, sec. 40(1-2), Laws of Kenya Rev. Ed. 2010 Ch. 63, Aug. 1, 1930, as updated through to Jul. 12, 2012.
[11] Kenya Penal Code, sec. 40(3), Laws of Kenya Rev. Ed. 2010 Ch. 63, Aug. 1, 1930, as updated through to Jul. 12, 2012.
[12] Kenya Defense Forces Act, secs. 58, 59, 60, 61, 62, 63, 67, 72, Law No. 25 of 2012, Aug. 3, 2012.
[13] Kenya Penal Code, sec. 60, Laws of Kenya Rev. Ed. 2010 Ch. 63, Aug. 1, 1930, as updated through to Jul. 12, 2012.
[14] Kenya Penal Code, secs. 40, 60, 296(2), and 297(2), Laws of Kenya Rev. Ed. 2010 Ch. 63, Aug. 1, 1930, as updated through to Jul. 12, 2012.
[15] Mutiso v. Republic, Criminal Appeal No. 17 of 2008, paras. 36-38, Court of Appeal at Mombasa, Jul. 30, 2010.
[16] Mutiso v. Republic, Criminal Appeal No. 17 of 2008, paras. 28, 33-34, 36-38, Court of Appeal at Mombasa, Jul. 30, 2010.
[17] Joseph Njuguna Mwaura & 2 Others vs. Republic, Criminal Appeal No. 5 of 2008, Court of Appeal at Nairobi, Oct. 18, 2013.
[18] Joseph Njuguna Mwaura & 2 Others vs. Republic, Criminal Appeal No. 5 of 2008, p. 26, Court of Appeal at Nairobi, Oct. 18, 2013.
[19] Kenya Penal Code, secs. 295, 296(2), 297(2), Laws of Kenya Rev. Ed. 2010 Ch. 63, Aug. 1, 1930, as updated through to Jul. 12, 2012.
[20] Mutiso v. Republic, Criminal Appeal No. 17 of 2008, paras. 28, 33-34, 36-38, Court of Appeal at Mombasa, Jul. 30, 2010. Simons Muirhead & Burtons, Mandatory death penalty unconstitutional: Kenya Court of Appeal, The Online Citizen, http://theonlinecitizen.com/2010/08/mandatory-death-penalty-unconstitutional-kenya-court-of-appeal/, July 30, 2010. Amnesty Intl., Kenya: Important Death Penalty Judgment, http://www.amnesty.org.au/news/comments/23548/, Aug. 18, 2010.
[21] Joseph Njuguna Mwaura & 2 Others vs. Republic, Criminal Appeal No. 5 of 2008, Court of Appeal at Nairobi, Oct. 18, 2013.
[22] Kenya Penal Code, sec. 40(3), Laws of Kenya Rev. Ed. 2010 Ch. 63, Aug. 1, 1930, as updated through to Jul. 12, 2012.
[23] Kenya Penal Code, sec. 60, Laws of Kenya Rev. Ed. 2010 Ch. 63, Aug. 1, 1930, as updated through to Jul. 12, 2012.
[24] Kenya Penal Code, sec. 60, Laws of Kenya Rev. Ed. 2010 Ch. 63, Aug. 1, 1930, as updated through to Jul. 12, 2012.
[25] Mutiso v. Republic, Criminal Appeal No. 17 of 2008, paras. 28, 33-34, 36-38, Court of Appeal at Mombasa, Jul. 30, 2010. Simons Muirhead & Burtons, Mandatory death penalty unconstitutional: Kenya Court of Appeal, The Online Citizen, http://theonlinecitizen.com/2010/08/mandatory-death-penalty-unconstitutional-kenya-court-of-appeal/, July 30, 2010. Amnesty Intl., Kenya: Important Death Penalty Judgment, http://www.amnesty.org.au/news/comments/23548/, Aug. 18, 2010.
[26] Joseph Njuguna Mwaura & 2 Others vs. Republic, Criminal Appeal No. 5 of 2008, Court of Appeal at Nairobi, Oct. 18, 2013.
[27] United Nations Office of the High Commissioner for Human Rights, Committee Against Torture Examines Kenya, http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?LangID=E&NewsID=13337, May 16, 2013.
[28] Kenya Penal Code, sec. 25(2), Laws of Kenya Rev. Ed. 2010 Ch. 63, Aug. 1, 1930, as updated through to Jul. 12, 2012.
[29] Kenya Penal Code, sec. 25(2), Laws of Kenya Rev. Ed. 2010 Ch. 63, Aug. 1, 1930, as updated through to Jul. 12, 2012.
[30] Status, Declarations, and Reservations, Convention on the Rights of the Child, 1577 U.N.T.S. 3, Nov. 20, 1989, http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-11&chapter=4&lang=en, last accessed Feb. 26, 2014.
[31] List of Countries which have Signed, Ratified, or Acceded to the Protocol to the African Charter on the Rights and Welfare of the Child, http://www.africa-union.org/root/au/Documents/Treaties/List/African%20Charter%20on%20the%20Rights%20and%20Welfare%20of%20the%20Child.pdf, Mar. 1, 2010.
[32] Kenya Penal Code, secs. 211-212, Laws of Kenya Rev. Ed. 2010 Ch. 63, Aug. 1, 1930, as updated through to Jul. 12, 2012.
[33] Kenya Penal Code, sec. 12, Laws of Kenya Rev. Ed. 2010 Ch. 63, Aug. 1, 1930, as updated through to Jul. 12, 2012.
[34] Kenya Criminal Procedure Code, sec. 166(1), Laws of Kenya Rev. Ed. 2010 Ch. 75, Aug. 1, 1930 as updated through to Jul. 12, 2012.
[35] Kenya Criminal Procedure Code, Laws of Kenya Rev. Ed. 2010 Ch. 75, Aug. 1, 1930 as updated through to Jul. 12, 2012.
[36] Kenya Criminal Procedure Code, Laws of Kenya Rev. Ed. 2010 Ch. 75, Aug. 1, 1930 as updated through to Jul. 12, 2012.

International Commitments

ICCPR

Party?

Yes. [1]

Date of Accession

May 1, 1972. [2]

Signed?

No. [3]

Date of Signature

Not Applicable.

First Optional Protocol to the ICCPR, Recognizing Jurisdiction of the Human Rights Committee

Party?

No. [4]

Date of Accession

Not Applicable.

Signed?

No. [5]

Date of Signature

Not Applicable.

Second Optional Protocol to the ICCPR, Toward the Abolition of the Death Penalty

Party?

No. [6]

Date of Accession

Not Applicable.

Signed?

No. [7]

Date of Signature

Not Applicable.

American Convention on Human Rights

Party?

Not Applicable.

Date of Accession

Signed?

Not Applicable.

Date of Signature

Death Penalty Protocol to the ACHR

Party?

Not Applicable.

Date of Accession

Signed?

Not Applicable.

Date of Signature

African Charter on Human and Peoples' Rights (ACHPR)

Party?

Yes. [8]

Date of Accession

Jan. 23, 1992. [9]

Signed?

No. [10]

Date of Signature

Not Applicable.

Protocol to the ACHPR on the Rights of Women in Africa

Party?

Yes. [11]

Date of Accession

October 6, 2010. [12]

Signed?

Yes. [13]

Date of Signature

December 17, 2003. [14]

African Charter on the Rights and Welfare of the Child

Party?

Yes. [15]

Date of Accession

July 25, 2000. [16]

Signed?

No. [17]

Date of Signature

Not Applicable.

Arab Charter on Human Rights

Party?

Not Applicable.

Date of Accession

Signed?

Not Applicable.

Date of Signature

2016 Record of Votes on the UN General Assembly Moratorium Resolution

Cosponsor

No. [18]

Vote

Abstained. [19]

Signed the Note Verbale of Dissociation

No. [20]

2014 Record of Votes on the UN General Assembly Moratorium Resolution

Cosponsor

No. [21]

Vote

Abstained. [22]

Signed the Note Verbale of Dissociation

No. [23]

2012 Record of Votes on the UN General Assembly Moratorium Resolution

Cosponsor

No. [24]

Vote

Abstained. [25]

Signed the Note Verbale of Dissociation

No. [26]

2010 Record of Votes on the UN General Assembly Moratorium Resolution

Cosponsor

No. [27]

Vote

Abstained. [28]

Signed the Note Verbale of Dissociation

No. [29]

2008 Record of Votes on the UN General Assembly Moratorium Resolution

Cosponsor

No. [30]

Vote

Abstained. [31]

Signed the Note Verbale of Dissociation

No. [32]

2007 Record of Votes on the UN General Assembly Moratorium Resolution

Cosponsor

No. [33]

Vote

Abstained. [34]

Signed the Note Verbale of Dissociation

No. [35]

References

[1] Status, Declarations, and Reservations, ICCPR, 999 U.N.T.S. 171, Dec. 16, 1966, http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en, last accessed Feb. 21, 2014.
[2] Status, Declarations, and Reservations, ICCPR, 999 U.N.T.S. 171, Dec. 16, 1966, http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en, last accessed Feb. 21, 2014.
[3] Status, Declarations, and Reservations, ICCPR, 999 U.N.T.S. 171, Dec. 16, 1966, http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en, last accessed Feb. 21, 2014.
[4] Status, Declarations, and Reservations, Optional Prot. to the ICCPR, 999 U.N.T.S. 171, Dec. 16, 1966, http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-5&chapter=4&lang=en, last accessed Feb. 21, 2014.
[5] Status, Declarations, and Reservations, Optional Prot. to the ICCPR, 999 U.N.T.S. 171, Dec. 16, 1966, http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-5&chapter=4&lang=en, last accessed Feb. 21, 2014.
[6] Status, Declarations, and Reservations, Second Optional Prot. to the ICCPR, Aiming at the Abolition of the Death Penalty, 1642 U.N.T.S. 414, Dec. 15, 1989, http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-12&chapter=4&lang=en, last accessed Feb. 21, 2014.
[7] Status, Declarations, and Reservations, Second Optional Prot. to the ICCPR, Aiming at the Abolition of the Death Penalty, 1642 U.N.T.S. 414, Dec. 15, 1989, http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-12&chapter=4&lang=en, last accessed Feb. 21, 2014.
[8] African Commission on Human and Peoples’ Rights, Ratification Table: African Charter on Human and People’s Rights, http://www.achpr.org/instruments/achpr/ratification, last accessed Mar. 4, 2014.
[9] African Union, List of countries which have signed, ratified/acceded to the African Charter of Human and People’s Rights, Doc. 0002, http://au.int/en/sites/default/files/African_Charter_on_Human_and_Peoples_Rights.pdf, Aug. 2, 2011.
[10] African Commission on Human and Peoples’ Rights, Ratification Table: African Charter on Human and People’s Rights, http://www.achpr.org/instruments/achpr/ratification, last accessed Mar. 4, 2014.
[11] African Commission on Human and Peoples’ Rights, Ratification Table: Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa, http://www.achpr.org/instruments/women-protocol/ratification, last accessed Mar. 4, 2014.
[12] African Commission on Human and Peoples’ Rights, Ratification Table: Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa, http://www.achpr.org/instruments/women-protocol/ratification, last accessed Mar. 4, 2014.
[13] African Commission on Human and Peoples’ Rights, Ratification Table: Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa, http://www.achpr.org/instruments/women-protocol/ratification, last accessed Mar. 4, 2014.
[14] African Commission on Human and Peoples’ Rights, Ratification Table: Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa, http://www.achpr.org/instruments/women-protocol/ratification, last accessed Mar. 4, 2014.
[15] African Commission on Human and Peoples’ Rights, Ratification Table: African Charter on the Rights and Welfare of the Child, http://www.achpr.org/instruments/child/ratification, last accessed Mar. 4, 2014.
[16] African Commission on Human and Peoples’ Rights, Ratification Table: African Charter on the Rights and Welfare of the Child, http://www.achpr.org/instruments/child/ratification, last accessed Mar. 4, 2014.
[17] African Commission on Human and Peoples’ Rights, Ratification Table: African Charter on the Rights and Welfare of the Child, http://www.achpr.org/instruments/child/ratification, last accessed Mar. 4, 2014.
[18] U.N.G.A., 71st Session, Promotion and protection of human rights: human rights questions, including alternative approaches for improving the effective enjoyment of human rights and fundamental freedoms, paras. 54-71 U.N. Doc. A/71/484/Add.2, Dec. 6, 2016.
[19] U.N.G.A., 71st Session, Promotion and protection of human rights: human rights questions, including alternative approaches for improving the effective enjoyment of human rights and fundamental freedoms, paras. 54-71 U.N. Doc. A/71/484/Add.2, Dec. 6, 2016.
[20] U.N.G.A., 71st Session, Note Verbale dated 7 September 2017, U.N. Doc. A/71/1047, Sep. 13, 2017.
[21] U.N.G.A., 69th Session, Promotion and Protection of Human Rights: human rights questions, including alternative approaches for improving the effective enjoyment of human rights and fundamental freedoms, paras. 141, 144, U.N. Doc. A/69/488/Add.2, Dec. 8, 2014.
[22] U.N.G.A., 69th Session, 73rd Plenary Meeting, pp. 17-18, U.N. Doc. A/69/PV.73, Dec. 18, 2014.
[23] U.N.G.A., 69th Session, Note Verbale dated 28 July 2015, U.N. Doc. A/69/993, Jul. 29, 2015.
[24] U.N.G.A., 67th Session, Third Committee, Moratorium on the Use of the Death Penalty, U.N. Doc. A/C.3/67/L.44/Rev.1, Nov. 15, 2012.
[25] U.N.G.A., 60th Plenary Meeting, Draft Resolution: Moratorium on the Use of the Death Penalty, U.N. Doc. A/67/457/Add.2, Dec. 20, 2012.
[26] U.N.G.A., 67th Session, Note Verbale dated 16 April 2013, U.N. Doc. A/67/841, Apr. 23, 2013.
[27] U.N.G.A., 65th Session, Promotion and Protection of Human Rights: human rights questions, including alternative approaches for improving the effective enjoyment of human rights and fundamental freedoms, p. 5, U.N. Doc. A/65/456/Add.2, Dec. 8, 2010.
[28] U.N.G.A., 65th Session, 71st Plenary Meeting, pp. 18-19, U.N. Doc. A/65/PV.71, Dec. 21, 2010.
[29] U.N.G.A., 65th Session, Note Verbale dated 11 March 2011, U.N. Doc. A/65/779, Mar. 11, 2011.
[30] U.N.G.A., 63rd session, Promotion and Protection of Human Rights: human rights questions, including alternative approaches for improving the effective enjoyment of human rights and fundamental freedoms, U.N. Doc. A/63/430/Add.2, Dec. 4, 2008.
[31] U.N.G.A., 63rd Session, 70th Plenary Meeting, pp. 16-17, U.N. Doc. A/63/PV.70, Dec. 18, 2008.
[32] U.N.G.A., 63rd Session, Note Verbale dated 10 February 2009, U.N. Doc. A/63/716, Feb. 12, 2009.
[33] U.N.G.A., 62nd Session, Promotion and Protection of Human Rights: human rights questions, including alternative approaches for improving the effective enjoyment of human rights and fundamental freedoms, U.N. Doc. A/62/439/Add.2, Dec. 5, 2007.
[34] U.N.G.A., 62nd Session, 76th Plenary Meeting, pp. 16-17, U.N. Doc. A/62/PV.76, Dec. 18, 2007.
[35] U.N.G.A., 62nd Session, Note Verbale dated 11 January 2008, U.N. Doc. A/62/658, Feb. 2, 2008.

Death Penalty In Law

Does the country’s constitution make reference to capital punishment?

The Constitution states “[e]very person has the right to life,” and “[a] person shall not be deprived of life intentionally, except to the extent authorised by this Constitution or other written law.” [1]

Does the country’s constitution make reference to international law?

The Constitution provides: “[t]he State shall enact and implement legislation to fulfill its international obligations in respect of human rights and fundamental freedoms.” [2] It further provides that, with regard to a person who is detained, “[p]arliament shall enact legislation that (a) provides for the humane treatment of persons detained, held in custody or imprisoned; and (b) takes into account the relevant international human rights instruments.” [3] In addition, it states that national security shall be promoted and guaranteed in accordance with human rights and fundamental freedoms, among other principles. [4]

Have there been any significant changes in the application of the death penalty over the last several years?

Although it has carried out no executions since 1987, Kenya continues to hand down a high volume of death sentences. The United Nations Human Rights Committee reported that at the end of 2012, there were at least 1,582 prisoners on death row. [5] All of these death sentences were pronounced in the space of three and a half years, since 4,000 death-sentenced prisoners had their sentences commuted to life imprisonment in August 2009, when President Mwai Kibaki stated that the mass commutation would help alleviate the “undue mental anguish and suffering, psychological trauma and anxiety” that resulted from extended stays on death row. [6] Furthermore, Kenya has abstained from voting on all four U.N. General Assembly Resolutions calling for a moratorium on the use of capital punishment. [7] Although the death penalty has not been applied in over 20 years, there seems to be no political will to move towards abolition. The result is legal limbo for the hundreds of individuals who are living on death row.

In July 2010, the Court of Appeal at Mombasa ruled in Mutiso v. Republic that the mandatory death penalty for murder violates constitutional protections against arbitrariness and inhuman treatment. The Court considered an array of foreign and international jurisprudence for similar jurisdictions and determined that the mandatory death penalty for murder “is antithetical to the Constitutional provisions on protection against inhuman or degrading punishment or treatment and fair trial.” The Director of Public Prosecutions conceded that courts should have discretion during sentencing for murder convictions, and the Court ruled that the penal law on murder would henceforth permit discretion during sentencing. The Court did not rule on whether treason, robbery with violence, or attempted robbery with violence could permissibly carry the mandatory death penalty, but stated that its reasoning “might well apply” and doubted “if different arguments could be raised in respect of other capital offenses…” [8]

Three years later in 2013, the Court of Appeal at Nairobi in Joseph Njuguna Mwaura & 2 Others vs. Republic upheld the mandatory death penalty for armed robbery, ruling that it was up to the legislature to decide whether or not to impose the mandatory death penalty. [9] These conflicting decisions will presumably be resolved in a challenge to the mandatory death penalty that is currently pending before the Kenyan Supreme Court.

In 2012 the number of death-eligible crimes increased when the Kenya Defence Forces Act was signed into law. The Act stipulates that members of Kenya’s Defence Force can be sentenced to death for committing a range of crimes, including spying, aiding the enemy, and unlawfully advocating for change. [10]

Is there currently an official moratorium on executions within the country?

No. Although Kenya has not carried out any execution since 1987, and the President commuted over 4,000 death sentences in 2009, [11] we found no reports of an official moratorium on executions. [12]

Have there been any significant published cases concerning the death penalty in national courts?

In 2010, the Court of Appeal in Mutiso v. Republic determined that the mandatory death penalty for murder violates constitutional protections against arbitrariness and inhuman treatment. Considering an array of foreign and international jurisprudence for similar jurisdictions, the Court determined that the mandatory death penalty for murder “is antithetical to the Constitutional provisions on protection against inhuman or degrading punishment or treatment and fair trial.” The Court did not rule on whether treason, robbery with violence, or attempted robbery with violence could carry the mandatory death penalty, but stated that its reasoning in Mutiso “might well apply” and that it doubted “if different arguments could be raised in respect of other capital offenses.” [13] The Court implied that a sentencing court should consider mitigating circumstances as well as the “gravity of the offense committed and the circumstances of the deceased’s death.” The Court also emphasized passages from other opinions that state or imply that the death penalty should be restricted to aggravated murders, [14] which authorizes speculation that the Court might enforce a restriction of the death penalty to aggravated murder. Finally, the Court strongly implied that it would look favorably upon an appeal against a sentence of death based on “death row syndrome,” a form of psychological trauma inflicted upon prisoners who spend lengthy periods under a sentence of death. The Court stated that the President and the Advisory Council on the Prerogative of Mercy have “obligations under the law” to review death sentences in a timely fashion, and implied that the President must commute death sentences when convicts would otherwise languish on death row for lengthy periods. [15]

A year later in 2011, the High Court declined to apply Mutiso to strike down the mandatory death penalty to other capital offenses. In Republic v. John Kimita Mwaniki, the High Court expressed concern that the Mutiso precedent would confuse minimum sentencing for all crimes. [16] The Court specifically referred to the Sexual Offences Act and the Drugs Narcotics and Psychotropic Substances Act, which both use mandatory language [17] and worried that it would be inundated with applications for revision from ‘shall’ to ‘may.’

In 2013, the Court of Appeal in Joseph Njuguna Mwaura & 2 Others vs. Republic upheld the mandatory death penalty for armed robbery. [18] The court reasoned that whether or not the mandatory death penalty is constitutional is a matter for the legislature. [19] It also held that the mandatory death penalty did not constitute cruel, inhumane and degrading punishment because it is not applied for sadistic purposes. [20]

These conflicting decisions will presumably be resolved in a challenge to the mandatory death penalty that is currently pending before the Kenyan Supreme Court. Therefore the future constitutionality of the mandatory of the death penalty is uncertain.

Where can one locate or access judicial decisions regarding the death penalty?

A comprehensive database of Kenya’s laws and court decisions may be found at Kenya Law Reports eKLR at www.kenyalaw.org, which includes the Kenya Law Reports case reporter from 1971, and the Kenya Gazette from 2003. The site’s “bench updates” section hosts unreported recent decisions from the High Court and the Court of Appeal. [21]

LawAfrica (www.lawafrica.com) provides a subscription-based access to case reporters from throughout the East African region.

What is the clemency process?

The Constitution outlines the clemency process in Kenya. On the petition of an offender, the President “may exercise a power of mercy in accordance with the advice of the Advisory Committee” to grant a free or conditional pardon, postpone the execution of a punishment, substitute a less severe form of punishment or remit all or part of a punishment. The Advisory Committee—composed of the Attorney General, Cabinet Secretary for correctional services, and five other members—considers the petition, and may take into account the views of victims. [22] In cases in which a death sentence has been pronounced, the judge, if no appeal from the sentence is confirmed, will forward case notes of trial evidence and a written recommendation to the President for review. [23] The President will then “issue a death warrant, or an order for the sentence of death to be commuted, or a pardon.” If the sentence is commuted for another punishment, the President will specify the other punishment; likewise, if the person sentenced is pardoned, the pardon shall state whether it is free or conditional. [24]

Only two appeals for executive clemency have been successful in the last seven years. [25]

Are jury trials provided for defendants charged with capital offenses?

No. The Kenyan legal system does not provide for a trial by jury, as all cases are tried before a judge. [26] The High Court had been able to appoint three “assessors,” or lay citizens, to sit with the high court judge, in cases of treason and murder. However the practice was abolished in 2007. [27]

Brief Description of Appellate Process

Under the Constitution, “[e]very person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court;” this includes the right to appeal. [28] The High Court has a special division that hears serious crimes including capital offenses, and individuals may appeal from the High Court to the Court of Appeals. [29] Moreover, “[n]o sentence of death shall be carried out until the time for giving notice of appeal has been given, until the appeal has been determined.” [30] A notice of appeal against a decision in a criminal matter must be filed within 14 days of the court’s decision. [31] Though the High Court may, at its discretion, extend the time for giving notice of intention to appeal, no extensions may be granted to individuals under sentence of death once the warrant for the execution of the death sentence has been issued. [32] Additionally, the cost of transport to and from the Court of Appeal for a death-sentenced appellant is borne out of the funds of the Court. [33]

References

[1] The Constitution of Kenya, art. 26, Aug. 28, 2010.
[2] The Constitution of Kenya, art. 21(4), Aug. 28, 2010.
[3] The Constitution of Kenya, art. 51(3), Aug. 28, 2010.
[4] The Constitution of Kenya, art. 238 (2), Aug. 28, 2010.
[5] U.N. ICCPR, Human Rights Committee, Concluding Observations of the Human Rights Committee: Kenya, para. 10, U.N. Doc. CCPR/C/KEN/CO/3, Aug. 31, 2012.
[6] Nick Wadhams, Kenya’s Death Row Inmates Get Life Instead, Time Magazine, http://www.time.com/time/world/article/0,8599,1914708,00.html, Aug. 5, 2009.
[7] U.N.G.A., 67th Session, Third Committee, Moratorium on the Use of the Death Penalty, U.N. Doc. A/C.3/67/L.44/Rev.1, Nov. 15, 2012. U.N.G.A., 65th Session, Promotion and Protection of Human Rights: human rights questions, including alternative approaches for improving the effective enjoyment of human rights and fundamental freedoms, p. 5, U.N. Doc. A/65/456/Add.2, Dec. 8, 2010. U.N.G.A., 63rd session, Promotion and Protection of Human Rights: human rights questions, including alternative approaches for improving the effective enjoyment of human rights and fundamental freedoms, U.N. Doc. A/63/430/Add.2, Dec. 4, 2008. U.N.G.A., 62nd Session, Promotion and Protection of Human Rights: human rights questions, including alternative approaches for improving the effective enjoyment of human rights and fundamental freedoms, U.N. Doc. A/62/439/Add.2, Dec. 5, 2007.
[8] Mutiso v. Republic, Criminal Appeal No. 17 of 2008, paras. 28, 34, 36-38, Court of Appeal at Mombasa, Jul. 30, 2010.
[9] Joseph Njuguna Mwaura & 2 Others vs. Republic, Criminal Appeal No. 5 of 2008, Court of Appeal at Nairobi, Oct. 18, 2013.
[10] Kenya Defense Forces Act, secs. 58, 59, 60, 61, 62, 63, 67, 72, no. 25 of 2012, Aug. 3, 2012.
[11] Amnesty Intl., Death Sentences and Executions in 2009, p. 23, ACT 50/001/2010, Mar. 30, 2010.
[12] Amnesty Intl, Kenya Annual Report, https://www.amnesty.org/en/region/kenya/report-2013#section-76-10, last accessed Feb. 24, 2014.
[13] Mutiso v. Republic, Criminal Appeal No. 17 of 2008, paras. 28, 34, 36-38, Court of Appeal at Mombasa, Jul. 30, 2010. Simons Muirhead & Burtons, Mandatory death penalty unconstitutional: Kenya Court of Appeal, The Online Citizen, http://theonlinecitizen.com/2010/08/mandatory-death-penalty-unconstitutional-kenya-court-of-appeal/, July 30, 2010. Amnesty Intl., Kenya: Important Death Penalty Judgment, http://www.amnesty.org.au/news/comments/23548/, Aug. 18, 2010.
[14] Mutiso v. Republic, Criminal Appeal No. 17 of 2008, paras. 33-34, 37, Court of Appeal at Mombasa, Jul. 30, 2010
[15] Mutiso v. Republic, Criminal Appeal No. 17 of 2008, paras. 14-19, Court of Appeal at Mombasa, Jul. 30, 2010.
[16] Republic v John Kimita Mwaniki, Criminal Case, no. 116 of 2007, p. 25, High Court of Kenya, Jun. 10, 2011.
[17] Republic v John Kimita Mwaniki, Criminal Case, no. 116 of 2007, p. 25, High Court of Kenya, Jun. 10, 2011.
[18] Joseph Njuguna Mwaura & 2 Others vs. Republic, Criminal Appeal No. 5 of 2008, p. 26, Court of Appeal at Nairobi, Oct. 18, 2013.
[19] The Court of Appeal in Mutiso v. Republic determined that the mandatory death penalty for murder violates the protections against arbitrariness and inhuman treatment, but in 2013 the Court of Appeal in Joseph Njuguna Mwaura & 2 Others vs. Republic upheld the mandatory death penalty for armed robbery.These conflicting decisions will presumably be resolved in a challenge to the mandatory death penalty that is currently pending before the Kenyan Supreme Court. Therefore the future constitutionality of the mandatory of the death penalty is uncertain.
[20] Joseph Njuguna Mwaura & 2 Others vs. Republic, Criminal Appeal No. 5 of 2008, p. 21, Court of Appeal at Nairobi, Oct. 18, 2013.
[21] Tom Ojienda, Leonard Obura Aloo and Mathews Okoth, Update: Researching Kenyan Law, GlobaLex, http://www.nyulawglobal.org/globalex/Kenya1.htm#_Law_Reporting, Sep. 2011.
[22] The Constitution of Kenya, art. 133, Aug. 28, 2010.
[23] Kenya Criminal Procedure Code, sec. 332(1), Ch. 75 Laws of Kenya Rev. Ed. 2010.
[24] Kenya Criminal Procedure Code, secs. 332(1-3), Ch. 75 Laws of Kenya Rev. Ed. 2010.
[25] Penal Reform International, The Abolition of the Death Penalty and its Alternative Sanction in East Africa: Kenya and Uganda, p. 37, http://www.penalreform.org/wp-content/uploads/2013/05/East-Africa-research-report-on-death-penalty-and-life-imprisonment.pdf, May 2013.
[26] U.S. Dept. of State, 2012 Human Rights Report: Kenya, Denial of Fair Public Trial, http://www.state.gov/documents/organization/204343.pdf, Apr. 19, 2013.
[27] Kenya Criminal Procedure Code, sec. 349, Laws of Kenya Rev. Ed. 2010 Ch. 75, Aug. 1, 1930, as amended by Law No. 7 of 2007, Oct. 10, 2007.
[28] The Constitution of Kenya, arts. 50(1), 50(2)(q), Aug. 28, 2010.
[29] Kenya Appellate Jurisdiction Act, sec. 3, Laws of Kenya Rev. Ed. 2010 Ch. 9, Oct. 28, 1977, as updated through to Jul. 12, 2012. U.S. Dept. of State, 2012 Human Rights Report: Kenya, Denial of Fair Public Trial, http://www.state.gov/documents/organization/204343.pdf, Apr. 19, 2013.
[30] Kenya Appellate Jurisdiction Act, sec. 5(1), Laws of Kenya Rev. Ed. 2010 Ch. 9, Oct. 28, 1977, as updated through to Jul. 12, 2012.
[31] Kenya Appellate Jurisdiction Act, sec. 59(1), Laws of Kenya Rev. Ed. 2010 Ch. 9, Oct. 28, 1977, as updated through to Jul. 12, 2012.
[32] Kenya Appellate Jurisdiction Act, sec. 7, Laws of Kenya Rev. Ed. 2010 Ch. 9, Oct. 28, 1977, as updated through to Jul. 12, 2012.
[33] Kenya Appellate Jurisdiction Act, sec. 70(5), Laws of Kenya Rev. Ed. 2010 Ch. 9, Oct. 28, 1977, as updated through to Jul. 12, 2012.

Death Penalty In Practice

Where Are Death-Sentenced Prisoners incarcerated?

Death-sentenced prisoners are incarcerated in Kenya’s five maximum security prisons: Kamiti, Naivash, Kingongo, Kibos, Manyani, Kodiaga, and Shimo La Tewa. [1]

Description of Prison Conditions

Death row inmates are housed in overcrowded and unhygienic prisons, apart from the rest of the prison population. [2] In May 2008, the director of health services for prison services stated that the country’s 90 prisons held 48,000 prisoners, even though they were only designed to hold 12,000 persons. Prisoners sleep on dirty and damp cement floors, often in single file to conserve space. [3]

According to the Kenya National Commission on Human Rights, conditions are unsanitary in addition to being overcrowded. High numbers of deaths from infectious disease and inadequate medical treatment remain prevalent, and inadequate food portions and water shortages continue to be a problem. [4] Death row inmates are served even more meager meals than normal inmates, and it is common for prisoners to die of malnutrition. [5] Tuberculosis and HIV/AIDs are prevalent among inmates, partly on account of the unhygienic and crowded conditions. [6] Water shortages and inadequate sanitation infrastructure has led to the spread of typhoid, among other diseases. [7]

Prison officials acknowledged that inter-inmate rape and violence is a problem. [8] Media reports allege that female inmates are raped by prison guards as well as by fellow inmates. [9] Children may be detained with adults. [10]

The Kenya National Commission on Human Rights (2009), the Legal Resource Foundation (2007), and ongoing police investigations (2008) report that torture is endemic and “inflicted openly.” [11]

Individuals are sometimes held in solitary confinement for “longer than the legal maximum of 90 days.” This problem may be particularly acute for death row inmates. A media article reports that “Kenyan law confines those sentenced to death to their cells, barring them from taking part in prison work or study programs.” [12] A parliamentary committee report in Kenya blamed the idleness of death row inmates for bouts of prison violence. [13]

Inmates are denied visitation rights and the right to meet with counsel. [14]

Are there any known foreign nationals currently under sentence of death?

No foreign nationals are known to be under sentence of death. [15]

What are the nationalities of the known foreign nationals on death row?

No foreign nationals are known to be under the sentence of death. [16]

Are there any known women currently under sentence of death?

Yes. In 2011 there were 30 women on death row in Kenya. [17]

Are there any reports of individuals currently under sentence of death who may have been under the age of 18 at the time the crime was committed?

Persons under 18 are not eligible for the death penalty under Kenyan law. [18] No reports were found of minors being sentenced to death. Amnesty reports that there have been no know executions of juveniles since it first started keeping track in 1990. [19]

Comments regarding the racial/ethnic composition on death row

We did not find any information about the racial/ethnic composition of death row.

Are there lawyers available for indigent defendants facing capital trials?

Yes. Under the Constitution, “[e]very person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court;” this includes the right to state-funded counsel “if substantial injustice would otherwise result.” [20] Though indigent defendants do not have a right to government-provided legal counsel for all cases, they are entitled to government-provided legal counsel in capital cases. [21] Reports, however, suggest that the right to government-provided legal counsel only extends to those persons accused of murder and treason; the same right to legal representation does not extend to those charged with robbery committed with violence. [22]

In practice, the UN Human Rights Committee has noted that individuals accused of murder do not have access to lawyers during the initial stages of detention. [23] When granted, the quality of legal representation is notably poor and ineffective. [24]

Are there lawyers available for indigent prisoners on appeal?

Unclear. Under the Constitution, “[e]very person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court;” this includes the right to state-funded counsel “if substantial injustice would otherwise result.” [25] The Chief Justice or presiding judge may, at any time during a criminal application or appeal, assign an advocate to represent the appellant if “desirable in the interests of justice.” [26] The funds of the Court shall defray the fees and expenses of an assigned advocate. [27] We do not know whether this right is implemented in practice for capital defendants on appeal.

Comments on Quality of Legal Representation

One report indicates that a defendant’s right to consult with an attorney in a timely manner is “generally” respected, although some inmates report being denied their right to meet with counsel. [28] However, because discovery laws are not clearly defined, defense lawyers often do not have access to government-held evidence before a trial. The government may invoke the Official Secrets Act to justify withholding evidence. [29]

Other Comments on Criminal Justice System

Though the Criminal Procedure Code provides that capital defendants must be brought before a judge within fourteen days of arrest, [30] the government does not respect the law in practice. Courts have had to unconditionally release defendants because the police detained them longer than legally permitted. [31]

Despite significant judicial reforms, corruption plagues the judiciary. [32]

A February 2003 newsletter from the Kenya National Commission on Human Rights provides anecdotal evidence that capital cases can take over nine years to conclude. According to this report, capital defendants were not eligible for bail, and pretrial detention averaged sixteen months but could last upwards of three years. [33]

References

[1] Death Penalty News, Being on Death Row in Kenya, http://deathpenaltynews.blogspot.com/2013/06/being-on-death-row-in-kenya.html, Jun. 24, 2013.
[2] Penal Reform International, The Abolition of the Death Penalty and its Alternative Sanction in East Africa: Kenya and Uganda, p. 37, http://www.penalreform.org/wp-content/uploads/2013/05/East-Africa-research-report-on-death-penalty-and-life-imprisonment.pdf, May 2013. Death Penalty News, Being on Death Row in Kenya, http://deathpenaltynews.blogspot.com/2013/06/being-on-death-row-in-kenya.html, Jun. 24, 2013.
[3] Patricia Jameria Mbote and Migai Akech, Kenya: Justice Sector and Rule of Law, p. 152, Open Society Initiative for Eastern Africa, Mar. 2011.
[4] Patricia Jameria Mbote and Migai Akech, Kenya: Justice Sector and Rule of Law, p. 152, Open Society Initiative for Eastern Africa, Mar. 2011.
[5] Death Penalty News, Being on Death Row in Kenya, http://deathpenaltynews.blogspot.com/2013/06/being-on-death-row-in-kenya.html, Jun. 24, 2013.
[6] Penal Reform International, The Abolition of the Death Penalty and its Alternative Sanction in East Africa: Kenya and Uganda, p. 18, http://www.penalreform.org/wp-content/uploads/2013/05/East-Africa-research-report-on-death-penalty-and-life-imprisonment.pdf, May 2013.
[7] Penal Reform International, The Abolition of the Death Penalty and its Alternative Sanction in East Africa: Kenya and Uganda, p. 19, http://www.penalreform.org/wp-content/uploads/2013/05/East-Africa-research-report-on-death-penalty-and-life-imprisonment.pdf, May 2013.
[8] Penal Reform International, The Abolition of the Death Penalty and its Alternative Sanction in East Africa: Kenya and Uganda, p. 18, http://www.penalreform.org/wp-content/uploads/2013/05/East-Africa-research-report-on-death-penalty-and-life-imprisonment.pdf, May 2013.
[9] U.S. Dept. of State, 2012 Human Rights Report: Kenya, Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, http://www.state.gov/documents/organization/204343.pdf, Apr. 19, 2013.
[10] U.S. Dept. of State, 2012 Human Rights Report: Kenya, Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, http://www.state.gov/documents/organization/204343.pdf, Apr. 19, 2013.
[11] U.S. Dept. of State, 2012 Human Rights Report: Kenya, Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, http://www.state.gov/documents/organization/204343.pdf, Apr. 19, 2013.
[12] Nick Wadhams, Kenya’s Death Row Inmates Get Life Instead, Time, http://content.time.com/time/world/article/0,8599,1914708,00.html, Aug. 5, 2009.
[13] Nick Wadhams, Kenya’s Death Row Inmates Get Life Instead, Time, http://content.time.com/time/world/article/0,8599,1914708,00.html, Aug. 5, 2009.
[14] U.S. Dept. of State, 2012 Human Rights Report: Kenya, Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, http://www.state.gov/documents/organization/204343.pdf, Apr. 19, 2013.
[15] Mark Warren, Foreigners Under Sentence of Death Worldwide, http://users.xplornet.com/~mwarren/world.html, Jan. 19, 2013.
[16] Mark Warren, Foreigners Under Sentence of Death Worldwide, http://users.xplornet.com/~mwarren/world.html, Jan. 19, 2013.
[17] Penal Reform International, The Abolition of the Death Penalty and its Alternative Sanction in East Africa: Kenya and Uganda, p. 37, http://www.penalreform.org/wp-content/uploads/2013/05/East-Africa-research-report-on-death-penalty-and-life-imprisonment.pdf, May 2013.
[18] Kenya Penal Code, sec. 25(2), Laws of Kenya Rev. Ed. 2010 Ch. 63, Aug. 1, 1930, as updated through to Jul. 12, 2012.
[19] Amnesty Intl., Executions of Juveniles since 1990, http://www.amnesty.org/en/death-penalty/executions-of-child-offenders-since-1990, last accessed Mar. 14, 2014.
[20] The Constitution of Kenya, arts. 50(1), 50(2)(h), Aug. 28, 2010.
[21] U.S. Dept. of State, 2012 Human Rights Report: Kenya, Denial of Fair Public Trial, http://www.state.gov/documents/organization/204343.pdf, Apr. 19, 2013.
[22] Kenya National Commission on Human Rights: Position Paper No. 2 on the Abolition of the Death Penalty, p. 11-12, http://www.knchr.org/dmdocuments/PositionPaperonDeath.pdf, 2007. Patricia Jameria Mbote and Migai Akech, Kenya: Justice Sector and Rule of Law, p. 152, Open Society Initiative for Eastern Africa, Mar. 2011.
[23] U.N. ICCPR, Human Rights Committee, Concluding Observations of the Human Rights Committee: Kenya, paras. 17, U.N. Doc. CCPR/CO/83/KEN, Apr. 29, 2005.
[24] Penal Reform International, The Abolition of the Death Penalty and its Alternative Sanction in East Africa: Kenya and Uganda, p. 14, http://www.penalreform.org/wp-content/uploads/2013/05/East-Africa-research-report-on-death-penalty-and-life-imprisonment.pdf, May 2013.
[25] The Constitution of Kenya, arts. 50(1), 50(2)(h), Aug. 28, 2010.
[26] Kenya Appellate Jurisdiction Act, sec. 24(1), Laws of Kenya Rev. Ed. 2010 Ch. 9, Oct. 28, 1977, as updated through to Jul. 12, 2012.
[27] Kenya Appellate Jurisdiction Act, sec. 24(1), Laws of Kenya Rev. Ed. 2010 Ch. 9, Oct. 28, 1977, as updated through to Jul. 12, 2012.
[28] U.S. Dept. of State, 2012 Human Rights Report: Kenya, Trial Procedures, http://www.state.gov/documents/organization/204343.pdf, Apr. 19, 2013. U.S. Dept. of State, 2012 Human Rights Report: Kenya, Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, http://www.state.gov/documents/organization/204343.pdf, Apr. 19, 2013.
[29] Kenya Official Secrets Act, sec. 12, Laws of Kenya Rev. Ed. 2010 Ch. 187, Feb. 16, 1968, as updated through to Jul. 12, 2012. U.S. Dept. of State, 2012 Human Rights Report: Kenya, Trial Procedures, http://www.state.gov/documents/organization/204343.pdf, Apr. 19, 2013.
[30] Kenya Criminal Procedure Code, sec. 349, Laws of Kenya Rev. Ed. 2010 Ch. 75, Aug. 1, 1930 as updated through to Jul. 12, 2012.
[31] Patricia Jameria Mbote and Migai Akech, Kenya: Justice Sector and Rule of Law, p. 143, Open Society Initiative for Eastern Africa, Mar. 2011.
[32] Patricia Jameria Mbote and Migai Akech, Kenya: Justice Sector and Rule of Law, p. 7, Open Society Initiative for Eastern Africa, Mar. 2011. U.S. Dept. of State, 2012 Human Rights Report: Kenya, Denial of Fair Public Trial, http://www.state.gov/documents/organization/204343.pdf, Apr. 19, 2013.
[33] The Kenya National Commission on Human Rights, Nguzo za Haki Issue 1, p. 16-18, http://www.knchr.org/dmdocuments/Nguzo_Issue1.pdf, Feb. 2003.

Decisions of International Human Rights Bodies

Decisions of Human Rights Committee

In 2012, the Human Rights Committee expressed regret that Kenya continues to retain the death penalty and that there were 1,582 inmates on death row. It noted, in particular, the fact that robbery continues to be a capital crime despite the fact that it does not qualify as a “most serious crime.” [1]

In 2005, the Human Rights Committee had already expressed concern that Kenyan courts imposed the death penalty for robbery or attempted robbery with violence, “which do not qualify as ‘most serious crimes’ within the meaning of article 6, paragraph 2 of the Covenant.” The Committee also deplored the large numbers of individuals on death row, and recommended that Kenya repeal the death penalty for crimes that are not ‘most serious crimes’ and commute the death sentences of individuals who have exhausted their final appeals. The Committee expressed concern that those accused of murder did not have access to lawyers during the initial stages of detention. Finally, the Committee denounced reports of abuses against individuals in custody, including torture by police, and recommended that Kenya take more effective measures to prevent such abuses. [2]

Decisions of Other Human Rights Bodies

In the Human Rights Council’s 2010 Universal Periodic Review of Kenya, a number of nations urged Kenya to amend national legislation to abolish the death penalty, sign and ratify the Second Optional Protocol to the International Covenant on Civil and Political Rights, establish a de jure moratorium on capital punishment, and, “[s]trictly ensure that the death penalty is not imposed for children. [3] In response to the recommendations, Kenya indicated that the public “had overwhelmingly rejected the abolition of the death penalty for the most serious crimes.” However, Kenya stated the Government and the Kenya National Commission on Human Rights continued to educate the public regarding the abolition of the death penalty. Further, Kenya clarified that it did not impose the death penalty on children. [4]

In 2009, the Committee Against Torture noted concern for Kenya’s treatment of death row inmates, suggesting that it could amount to ill-treatment. [5] It urged Kenya to establish a moratorium on the death penalty. It also recommended that Kenya improve detention conditions for death row inmates to ensure compliance with the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. [6]

References

[1] U.N. ICCPR, Human Rights Committee, Concluding Observations of the Human Rights Committee: Kenya, para. 10, U.N. Doc. CCPR/C/KEN/CO/3, Aug. 31, 2012.
[2] U.N. ICCPR, Human Rights Committee, Concluding Observations of the Human Rights Committee: Kenya, paras. 13, 17, 18, U.N. Doc. CCPR/CO/83/KEN, Apr. 29, 2005.
[3] UPR-Info.org, Responses to Recommendations: Kenya, Universal Periodic Review, p. 9, http://www.upr-info.org/IMG/pdf/Recommendations_to_Kenya_2010.pdf, Jan. 13, 2011. see also U.N.G.A., Human Rights Council, Report of the Working Group on the UPR, U.N. Doc. A/HRC/15/8, Jun. 17, 2010.
[4] UPR-Info.org, Responses to Recommendations: Kenya, Universal Periodic Review, p. 10, http://www.upr-info.org/IMG/pdf/Recommendations_to_Kenya_2010.pdf, Jan. 13, 2011.
[5] U.N., Committee Against Torture, Conv. Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Kenya, Concluding Observations, CAT/C/KEN/CO/1, Jan. 19, 2009.
[6] U.N., Committee Against Torture, Conv. Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Kenya, Concluding Observations, CAT/C/KEN/CO/1, Jan. 19, 2009.

Additional Sources and Contacts

Direct member(s) of World Coalition Against the Death Penalty

None.

Other non-governmental organizations and individuals engaged in advocacy surrounding the death penalty

The Kenya National Commission on Human Rights (http://www.knchr.org/) is an independent public institution established to advise the government on protecting and promoting human rights.

The Kenya National Commission on Human Rights urgently advises that parliament abolish capital punishment. [1]

The Kenya Legal Resources Foundation (http://www.lrf-kenya.org/) has reported on prison conditions.

Helpful Reports and Publications

Patricia Kameri Mbote & Migai Akech, Kenya: Justice Center and the Rule of Law, Open Society Initiative for East Africa, http://www.ielrc.org/content/a1104.pdf, Mar. 2011. The Kenya National Commission on Human Rights issues annual and thematic reports on human rights issues, available at http://www.knchr.org/.

Kenya National Commission on Human Rights, Abolition of the Death Penalty in Kenya, Position Paper No. 2 http://www.knchr.org/dmdocuments/PositionPaperonDeath.pdf, 2007.

Penal Reform International, The Abolition of the Death Penalty and its Alternative Sanction in East Africa: Kenya and Uganda, http://www.penalreform.org/wp-content/uploads/2013/05/East-Africa-research-report-on-death-penalty-and-life-imprisonment.pdf, May 2013.

Additional notes regarding this country

Though no official executions have been carried out since 1987, [2] extrajudicial killings remain prevalent. Amid grave offenses against civilians by militias and organized crime, police carry out extrajudicial killings of suspected members of such organizations. Aside from those grave offenses, police also use the environment of impunity to commit extortion and to cover up grave offenses against those they know to be innocent civilians. [3]

References

[1] Rosalia Omungo, Call for Abolition As Thousands Await, IPS, http://ipsnews.net/news.asp?idnews=38474, Jul. 9, 2007.
[2] United Nations Office of the High Commissioner for Human Rights, Committee Against Torture Examines Kenya, http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?LangID=E&NewsID=13337, May 16, 2013.
[3] Group: Kenya Police Death Squad Killed 2 Suspects, USA Today, http://www.usatoday.com/story/news/world/2013/06/26/kenya-death-squads/2461807/, Jun. 26, 2013. Philip Alston, U.N. Special Rapporteur on Extrajudicial, Arbitrary or Summary Executions, Mission to Kenya 16-25 February 2009, Statement, http://www.unhchr.ch/huricane/huricane.nsf/view01/52DF4BE7194A7598C125756800539D79?opendocument, Feb. 25, 2009. U.N. Press Release, Independent Expert on Extrajudicial Executions Says Police Killings in Kenya Are “Systematic, Widespread and Carefully Planned”, http://www.unhchr.ch/huricane/huricane.nsf/0/EAFBE45849510C0EC125756800534815?opendocument, Feb. 25, 2009.

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