Base de données

Kenya

Recherche mise à jour le: 30 janvier 2019

Générales

Nom officiel du pays

Republic of Kenya (Kenya). [1]

Région géographique

Afrique (Afrique orientale). [2]

Statut

Abolitionniste de fait. The last known recorded execution in Kenya was carried out in 1987. [3]

There are conflicting sources stating that the last execution was carried out in 1986. [4]

Méthode(s) d’exécution

Pendaison.
Executions are to be carried out by hanging. [5]

Références

[1] BBC, Country Profiles: Kenya Profile, http://www.bbc.co.uk/news/world-africa-13681342, Dec. 2, 2014.
[2] U.N. Statistics Division, Standard country or area codes for statistical use (M49), https://unstats.un.org/unsd/methodology/m49/, last accessed Oct. 11, 2018.
[3] U.N. Office of the High Commissioner for Human Rights, Committee Against Torture Examines Kenya, http://newsarchive.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=13337&LangID=E, May 16, 2013. Jeffrey Gettleman, Kenya Spares the Lives of Everyone on Its Death Row, New York Times, https://www.nytimes.com/2016/10/25/world/africa/kenya-kenyatta-death-penalty-reprieve.html, Oct. 24, 2016.
[4] Oliver Mathenge, Uhuru commutes Death Row sentences to life prison terms, The Star, https://www.the-star.co.ke/news/2016/10/25/uhuru-commutes-death-row-sentences-to-life-prison-terms_c1443274, Oct. 25, 2016. Francis Karioko Muruatetu & another v. Republic, para. 70, Petition No. 15 of 2015 as consolidated with Petition No. 16 of 2015, Supreme Ct. of Kenya, Dec. 14, 2017.
[5] Prisons Act of Kenya, sec. 69, Laws of Kenya Revised Edition 2017 Ch. 90, Feb. 19, 1963, as updated through to 2016.

Détails du pays

Langue(s)

Swahili and English. [1]

Population

48 500 000. [2]

Nombre d’individus actuellement condamnés à mort

At least 158.

According to Amnesty International, there were at least 158 people on death row at the Kamiti Maximum Security Prison in November 2018. [3] It has been reported that the total death row count in Kenya is approximately 650. [4]

(This question was last updated on June 5, 2019.)

Nombre d’exécutions recensées par an

2019 : Exécutions recensées à date (mis à jour le 13 novembre 2019)

0. [5]

2018: Exécutions recensées

0. [6]

2017: Executions

0. [7]

Exécutions in 2016

0. [8]

Exécutions en 2015

0. [9]

Exécutions en 2014

0. [10]

Exécutions en 2013

0. [11]

Exécutions en 2012

0. [12]

Exécutions en 2011

0. [13]

Exécutions en 2010

0. [14]

Exécutions en 2009

0. [15]

Exécutions en 2008

0. [16]

Exécutions en 2007

0. [17]

Année de la dernière exécution connue

1987. There appears to be confusion as to the last known year of execution. The last reported executions were carried out in 1987, [18] when three people were hanged for treason following their role in the 1982 coup attempt against President Daniel Arap Moi. [19] However, the Kenyan Supreme Court stated in 2015 that the last execution took place in 1986. [20]

Références

[1] BBC, Country Profiles: Kenya Profile, https://www.bbc.com/news/world-africa-13681341, Dec. 2, 2014.
[2] BBC, Country Profiles: Kenya Profile, https://www.bbc.com/news/world-africa-13681341, Dec. 2, 2014.
[3] Amnesty Intl., Death Sentences and Executions in 2018, p. 39, ACT 50/9870/2019, Apr. 10, 2019.
[4] Katie Campbell, affiliated with Reprieve, Email to DPW, DPW Kenya Doc. E-5, May 28, 2019.
[5] DPW Executions and Death Sentences Monitor.
[6] Amnesty Intl., Death Sentences and Executions 2018, p. 39, 50/9870/2019, Apr. 10, 2019.
[7] Amnesty Intl., Death Sentences and Executions 2017, p. 34, ACT 50/7955/2018, Apr. 12, 2018.
[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, Apr. 1, 2015.
[11] Amnesty Intl., Death Sentences and Executions in 2013, ACT 50/001/2014, Mar. 27, 2014.
[12] Amnesty Intl., Death Sentences and Executions in 2012, ACT 50/001/2012, Apr. 10, 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] U.N. Office of the High Commissioner for Human Rights, Committee Against Torture Examines Kenya, http://newsarchive.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx? NewsID=13337&LangID=E, May 16, 2013. Jeffrey Gettleman, Kenya Spares the Lives of Everyone on Its Death Row, New York Times, https://www.nytimes.com/2016/10/25/world/africa/kenya-kenyatta-death-penalty-reprieve.html, Oct. 24, 2016. Anne Munyua, affiliated with County Government of Nandi Legal Services, Email to DPW, DPW Kenya Doc. E-1, Nov. 15, 2018.
[19] Anne Munyua, affiliated with County Government of Nandi Legal Services, Email to DPW, DPW Kenya Doc. E-1, Nov. 15, 2018.
[20] Francis Karioko Muruatetu & another v. Republic, para. 70, Petition No. 15 of 2015 as consolidated with Petition No. 16 of 2015, Supreme Ct. of Kenya, Dec. 14, 2017.

Crimes et personnes passibles de la peine de mort

Crimes passibles de la peine de mort

Meurtre.
The Penal Code states that “[a]ny person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.” [1]

Autre crime ayant entraîné la mort.
Administering an oath purporting to bind a person to commit a capital offense is punishable by death. [2]

Vol n’ayant pas entraîné la mort.
Robbery with violence and attempted robbery with violence are punishable by death. [3] To be guilty of robbery, a perpetrator must use or threaten to use actual violence to a person or property during the course of stealing something. [4] If robbery or attempted robbery is committed while using a dangerous or offensive weapon or instrument, or with a gang, or results in actual violence to any person, the crimes are punishable by death. [5]

Trahison.
Treason is punishable by death. [6] A variety of acts qualify as treason, such as acts that may cause the death, maiming or wounding, or the imprisonment or restraint of the President, or the deposing of the President, or overthrow by unlawful means of the government. [7] To constitute treason, a person’s intent must be established through publishing or writing or by an overt act or deed. [8] Additionally, any person who starts a war against Kenya, is adherent to or gives aid to Kenya’s enemies, in Kenya or elsewhere, or instigates in Kenya or elsewhere the invasion of Kenya with an armed force is guilty of treason. [9]

Crimes militaires n’ayant pas entraîné la mort.
Pursuant to the Kenya Defence Forces Act, aiding the enemy, [10] communication with the enemy, [11] spying, [12] offences by servicemembers or officers, or persons in command when in action, [13] unlawfully advocating for a change of government, [14] mutiny, [15] and failure to suppress mutiny [16] are all death-eligible offenses. Persons subject to the Kenya Defence Forces Act who commit the civil offences of treason or murder shall on conviction by a court-martial be liable to a death sentence. [17]

Autre(s) crime(s) n’ayant pas entraîné la mort.
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.” [18]

Est-ce que la législation du pays permet l’imposition obligatoire de la peine de mort?

Non. The Supreme Court of Kenya ruled in 2017 that the mandatory death penalty is unconstitutional in Francis Karioko Muruatetu & another v. Republic. [19]

Pour quels crimes, le cas échéant, y a-t-il imposition obligatoire de la peine de mort?

Vol n’ayant pas entraîné la mort.
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”). [20] 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, [21] the Court of Appeal at Nairobi in Joseph Njuguna Mwaura & 2 Others vs. Republic upheld the mandatory death penalty for armed robbery. [22] These conflicting decisions will presumably be resolved in a challenge to the mandatory death penalty that is currently pending before the Kenyan Supreme Court.

Trahison.
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.” [23]

Autre(s) crime(s) n’ayant pas entraîné la mort.
Administering an oath purported to bind a person to commit a capital offence: [24] 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.” [25]

Commentaires.
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, [26] 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. [27] 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 pour lesquels des individus ont été exécutés depuis janvier 2008

The Kenyan government has not carried out any executions since 1987. [28]

Catégories de la population exclues de la peine de mort

Individus de moins de 18 ans au moment du crime.
Kenya excludes anyone who was under the age of 18 at the time of an offense from a death sentence. [29] Instead 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.” [30] Kenya is also a party to the Convention on the Rights of the Child [31] and the African Charter on the Rights and Welfare of the Child, [32] which prohibit the execution of persons under 18 years of age. [33]

Femmes enceintes.
Pregnant women may not be sentenced to death, but receive a sentence of life imprisonment. [34] In such cases, whether a woman is pregnant is to be determined by a judge based on the evidence presented by the woman or the state. [35]

Personnes ayant un trouble mental.
Criminal responsibility may be negated if at the time of committing an offense, a person was incapable of understanding or knowing that he ought not to commit the act or omit to act because of insanity. [36] If at trial the accused 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. [37] When this happens, the court is required to report the case to the President, [38] who may order detention in a mental hospital, prison, or other place of custody. [39]

Intoxication may serve as a defense if intoxication led to temporary or permanent insanity. [40]

In the course of a trial, a court shall postpone proceedings and the accused may be released on bail if the accused is “of unsound mind and consequently incapable of making his defence.” [41] A later finding of fitness to stand trial must be supported by a certificate from a medical officer, which is provided to the Director of Public Prosecutions, who then will report to the court whether or not it intends to continue with the proceeding against the accused. [42] The court may at any time resume the trial and require the accused’s presence, and if the accused is deemed incapable of mounting a defense, the court “shall act as if the accused were brought before it for the first time.” [43]

Références

[1] Penal Code of Kenya, secs. 203–204, Aug. 1, 1930, as updated through to Dec. 22, 2014.
[2] Penal Code of Kenya, sec. 60, Aug. 1, 1930, as updated through to Dec. 22, 2014.
[3] Penal Code of Kenya, secs. 296(2), 297(2), Aug. 1, 1930, as updated through to Dec. 22, 2014.
[4] Penal Code of Kenya, sec. 295, Aug. 1, 1930, as updated through to Dec. 22, 2014.
[5] Penal Code of Kenya, secs. 296(2), 297(2), Aug. 1, 1930, as updated through to Dec. 22, 2014.
[6] Penal Code of Kenya, sec. 40(3), Aug. 1, 1930, as updated through to Dec. 22, 2014.
[7] Penal Code of Kenya, sec. 40(1), Aug. 1, 1930, as updated through to Dec. 22, 2014.
[8] Penal Code of Kenya, sec. 40(1)(b), Aug. 1, 1930, as updated through to Dec. 22, 2014.
[9] Penal Code of Kenya, sec. 40(2), Aug. 1, 1930, as updated through to Dec. 22, 2014.
[10] Kenya Defence Forces Act, sec. 58, Act No. 25 of 2012, Sep. 7, 2012, as updated through to 2016.
[11] Kenya Defence Forces Act, sec. 59, Act No. 25 of 2012, Sep. 7, 2012, as updated through to 2016.
[12] Kenya Defence Forces Act, sec. 60, Act No. 25 of 2012, Sep. 7, 2012, as updated through to 2016.
[13] Kenya Defence Forces Act, secs. 61–63, Act No. 25 of 2012, Sep. 7, 2012, as updated through to 2016.
[14] Kenya Defence Forces Act, sec. 67, Act No. 25 of 2012, Sep. 7, 2012, as updated through to 2016.
[15] Kenya Defence Forces Act, sec. 72, Act No. 25 of 2012, Sep. 7, 2012, as updated through to 2016.
[16] Kenya Defence Forces Act, sec. 73, Act No. 25 of 2012, Sep. 7, 2012, as updated through to 2016.
[17] Kenya Defence Forces Act, sec. 133(1)(a), Act No. 25 of 2012, Sep. 7, 2012, as updated through to 2016.
[18] Kenya Penal Code, sec. 60, Laws of Kenya Rev. Ed. 2010 Ch. 63, Aug. 1, 1930, as updated through to Jul. 12, 2012.
[19] Francis Karioko Muruatetu & another v. Republic, Petition No. 15 of 2015 as consolidated with Petition No. 16 of 2015, Supreme Ct. of Kenya, Dec. 14, 2017.
[20] 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.
[21] 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.
[22] Joseph Njuguna Mwaura & 2 Others vs. Republic, Criminal Appeal No. 5 of 2008, Court of Appeal at Nairobi, Oct. 18, 2013.
[23] Kenya Penal Code, sec. 40(3), 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] Kenya Penal Code, sec. 60, Laws of Kenya Rev. Ed. 2010 Ch. 63, Aug. 1, 1930, as updated through to Jul. 12, 2012.
[26] 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.
[27] Joseph Njuguna Mwaura & 2 Others vs. Republic, Criminal Appeal No. 5 of 2008, Court of Appeal at Nairobi, Oct. 18, 2013.
[28] 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.
[29] Penal Code of Kenya, sec. 25(2), Aug. 1, 1930, as updated through to Dec. 22, 2014.
[30] Penal Code of Kenya, sec. 25(2), Aug. 1, 1930, as updated through to Dec. 22, 2014.
[31] Status, Declarations, and Reservations, Convention on the Rights of the Child, 1577 U.N.T.S., Nov. 20, 1989, http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-11&chapter=4&lang=en, last accessed Oct. 17, 2018.
[32] 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://kenyalaw.org/treaties/treaties/14/African-Charter-on-the-Rights-and-Welfare-of-the-Child, last accessed Oct. 17, 2018.
[33] Conv. on the Rights of the Child, art. 37(a), 1577 U.N.T.S. 3, Nov. 20, 1989. African Charter on the Rights and Welfare of the Child, art. 5(3), CAB/LEG/24.9/49, Jul. 11, 1990.
[34] Penal Code of Kenya, sec. 211, Aug. 1, 1930, as updated through to Dec. 22, 2014.
[35] Penal Code of Kenya, secs. 211(1)–(2), Aug. 1, 1930, as updated through to Dec. 22, 2014.
[36] Penal Code of Kenya, sec. 12, Aug. 1, 1930, as updated through to Dec. 22, 2014.
[37] Criminal Procedure Code of Kenya, sec. 166(1), Laws of Kenya Revised Edition 2017 Ch. 75, Aug. 1, 1930, as updated through to 2017.
[38] Criminal Procedure Code of Kenya, sec. 166(2), Laws of Kenya Revised Edition 2017 Ch. 75, Aug. 1, 1930, as updated through to 2017.
[39] Criminal Procedure Code of Kenya, sec. 166(3), Laws of Kenya Revised Edition 2017 Ch. 75, Aug. 1, 1930, as updated through to 2017.
[40] Penal Code of Kenya, sec. 13(2)(b), Aug. 1, 1930, as updated through to Dec. 22, 2014.
[41] Criminal Procedure Code of Kenya, secs. 162(1)–(3), Laws of Kenya Revised Edition 2017 Ch. 75, Aug. 1, 1930, as updated through to 2017.
[42] Criminal Procedure Code of Kenya, secs. 163(1)–(2), Laws of Kenya Revised Edition 2017 Ch. 75, Aug. 1, 1930, as updated through to 2017.
[43] Criminal Procedure Code of Kenya, sec. 164, Laws of Kenya Revised Edition 2017 Ch. 75, Aug. 1, 1930, as updated through to 2017.

Engagements internationaux

PIDCP

Partie?

Oui. [1]

Date d’adhésion

May 1, 1972. [2]

Signataire?

Non. [3]

Date de signature

Not Applicable.

Premier Protocole facultatif se rapportant au PIDCP

Partie?

Non. [4]

Date d’adhésion

Not Applicable.

Signataire?

Non. [5]

Date de signature

Not Applicable.

Deuxième Protocole facultatif se rapportant au PIDCP

Partie?

Non. [6]

Date d’adhésion

Not Applicable.

Signataire?

Non. [7]

Date de signature

Not Applicable.

Convention américaine des droits de l'homme

Partie?

Non Applicable.

Date d’adhésion

Signataire?

Non Applicable.

Date de signature

Protocole à la Convention américaine des droits de l'homme sur la peine de mort

Partie?

Non Applicable.

Date d’adhésion

Signataire?

Non Applicable.

Date de signature

Charte africaine des droits de l'homme et des peuples

Partie?

Oui. [8]

Date d’adhésion

January 23, 1992. [9]

Signataire?

Non. [10]

Date de signature

Not Applicable.

Protocole à la Charte africaine des droits de l'homme et des peuples relatif aux droits des femmes

Partie?

Oui. [11]

Date d’adhésion

October 6, 2010. [12]

Signataire?

Oui. [13]

Date de signature

December 17, 2003. [14]

Charte africaine des droits et du bien-être de l'enfant

Partie?

Oui. [15]

Date d’adhésion

July 25, 2000. [16]

Signataire?

Non. [17]

Date de signature

Not Applicable.

Arab Charter on Human Rights

Partie?

Non Applicable.

Date d’adhésion

Signataire?

Non Applicable.

Date de signature

2018 Votes enregistrés pour la Résolution sur un moratoire à l’AG de l’ONU

Cosponsor

Non. [18]

Vote

Abstention. [19]

Signataire de la Note Verbale de dissociation

Non. [20]

2016 Votes enregistrés pour la Résolution sur un moratoire à l’AG de l’ONU

Cosponsor

Non. [21]

Vote

Abstention. [22]

Signataire de la Note Verbale de dissociation

Non. [23]

Cosponsor

Non. [24]

Vote

Abstention. [25]

Signataire de la Note Verbale de dissociation

Non. [26]

2012 Votes enregistrés pour la Résolution sur un moratoire à l’AG de l’ONU

Cosponsor

Non. [27]

Vote

Abstention. [28]

Signataire de la Note Verbale de dissociation

Non. [29]

2010 Votes enregistrés pour la Résolution sur un moratoire à l’AG de l’ONU

Cosponsor

Non. [30]

Vote

Abstention. [31]

Signataire de la Note Verbale de dissociation

Non. [32]

2008 Votes enregistrés pour la Résolution sur un moratoire à l’AG de l’ONU

Cosponsor

Non. [33]

Vote

Abstention. [34]

Signataire de la Note Verbale de dissociation

Non. [35]

2007 Votes enregistrés pour la Résolution sur un moratoire à l’AG de l’ONU

Cosponsor

Non. [36]

Vote

Abstention. [37]

Signataire de la Note Verbale de dissociation

Non. [38]

Références

[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 Oct. 12, 2018.
[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 Oct. 12, 2018.
[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 Oct. 12, 2018.
[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 Oct. 12, 2018.
[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 Oct. 12, 2018.
[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 Oct. 12, 2018.
[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 Oct. 12, 2018.
[8] African Commn. on Human and Peoples’ Rights, Ratification Table: African Charter on Human and People’s Rights, http://www.achpr.org/instruments/achpr/ratification, last accessed Jun. 28, 2019.
[9] African Commn. on Human and Peoples’ Rights, Ratification Table: African Charter on Human and People’s Rights, http://www.achpr.org/instruments/achpr/ratification, last accessed Jun. 28, 2019.
[10] African Commn. on Human and Peoples’ Rights, Ratification Table: African Charter on Human and People’s Rights, http://www.achpr.org/instruments/achpr/ratification, last accessed Jun. 28, 2019.
[11] African Commn. 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 Oct. 12, 2018.
[12] African Commn. 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 Oct. 12, 2018.
[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 Commn. 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 Oct. 12, 2018.
[15] African Commn. 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 Oct. 12, 2018.
[16] African Commn. 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 Oct. 12, 2018.
[17] African Commn. 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 Oct. 12, 2018.
[18] U.N.G.A. 73rd session, Promotion and protection of human rights: human rights questions, including alternative approaches for improving the effective enjoyment of human rights and fundamental freedoms, para. 135, U.N. Doc. A/73/589/Add.2, Dec. 4, 2018.
[19] U.N.G.A. 73rd session, 55th plenary meeting, p. 32, U.N. Doc. A/73/PV.55, Dec. 17, 2018.
[20] U.N.G.A., Note Verbale dated 13 September 2019, U.N. Doc. A/73/1004, Sep. 16, 2019.
[21] 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.
[22] 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, para. 67, U.N. Doc. A/71/484/Add.2, Dec. 6, 2016.
[23] U.N.G.A., 71st Session, Note Verbale dated 7 September 2017, U.N. Doc A/71/1047, Sep. 13, 2017.
[24] 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. 141, 144, U.N. Doc. A/69/488/Add.2, Dec. 8, 2014.
[25] U.N.G.A., 69th Session, 73rd Plenary Meeting, pp. 17–18, U.N. Doc. A/69/PV.73, Dec. 18, 2014.
[26] U.N.G.A., 69th Session, Note Verbale dated 28 July 2015, U.N. Doc. A/69/993, Jul. 29, 2015.
[27] 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.
[28] U.N.G.A., 60th Plenary Meeting, Draft Resolution: Moratorium on the Use of the Death Penalty, U.N. Doc. A/67/PV.60, Dec. 20, 2012.
[29] U.N.G.A., 67th Session, Note Verbale dated 16 April 2013, U.N. Doc. A/67/841, Apr. 23, 2013.
[30] 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, para. 33, U.N. Doc. A/65/456/Add.2, Dec. 8, 2010.
[31] U.N.G.A., 65th Session, 71st Plenary Meeting, pp. 18–19, U.N. Doc. A/65/PV.71, Dec. 21, 2010.
[32] U.N.G.A., 65th Session, Note Verbale dated 11 March 2011, U.N. Doc. U.N. Doc. A/65/779, Mar. 11, 2011.
[33] 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, para. 25, U.N. Doc. A/63/430/Add.2, Dec. 4, 2008.
[34] U.N.G.A., 63rd Session, 70th Plenary Meeting, pp. 16–17, U.N. Doc. A/63/PV.70, Dec. 18, 2008.
[35] U.N.G.A., 63rd Session, Note Verbale dated 10 February 2009, U.N. Doc. A/63/716, Feb. 12, 2009.
[36] 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, para. 19, U.N. Doc. A/62/439/Add.2, Dec. 5, 2007.
[37] U.N.G.A., 62nd Session, 76th Plenary Meeting, pp. 16–17, U.N. Doc. A/62/PV.76, Dec. 18, 2007.
[38] U.N.G.A., 62nd Session, Note Verbale dated 11 January 2008, pp. 3–4. U.N. Doc. A/62/658, Feb. 2, 2008.

La peine de mort en droit

Est-ce que la Constitution du pays fait référence à la peine de mort?

The Constitution enshrines the right to life, [1] but contains an exception stating that “[a] person shall not be deprived of life intentionally, except to the extent authorised by this Constitution or other written law.” [2] There is no specific provision addressing capital punishment.

Est-ce que la Constitution du pays fait référence au droit international?

The Constitution explicitly references international law and international human rights obligations. It provides that “[t]he State shall enact and implement legislation to fulfill its international obligations in respect of human rights and fundamental freedoms.” [3] With regards to a detained person, the Constitution mandates that parliament shall enact legislation that “takes into account the relevant international human rights instruments.” [4] There is confusion as to whether Kenya is now a monist or dualist state [5] as the 2010 Constitution proclaims that general rules of international law and any treaty or convention ratified by Kenya form part of the law of Kenya. [6]

Quels ont été les changements significatifs dans l’application de la peine de mort ces dernières années?

In December 2017, the Supreme Court issued its judgment in Francis Karioko Muruatetu & another v. Republic, [7] in which it ruled that the mandatory death penalty is unconstitutional. [8] This judgment affected the sentences of approximately 8,000 prisoners sentenced to death in Kenya. [9] The Supreme Court ordered the Attorney-General and the Director of Public Prosecutions, along with other government agencies, to review all capital cases of murder and armed robbery. [10] The Task Force on the Review of the Mandatory Death Sentence was constituted with the mandate of developing a proposal to implement the Supreme Court’s judgment, which includes the rehearing and resentencing of cases, the implementation of the Victim Protection Act of 2014, and the incorporation of alternative dispute resolution and restorative justice frameworks into criminal matters. [11] On March 7, 2018, the Task Force started its mandate with members from the following institutions: Judiciary, Office of Director of Public Prosecutions, National Crime Research Centre, the Power of Mercy Advisory Committee, Kenya Law Reform Commission, Parliament, Kenya National Commission on Human Rights, the Ministry of Interior and the Office of Attorney General and Department of Justice as the chair of the Committee. Those death-sentenced prisoners whose sentenced are reviewed could receive years in prison, life terms, or death sentences. [12]

Previous to the Muruatetu decision, another landmark change to the application of the death penalty occurred on October 24, 2016, when President Uhuru Kenyatta commuted the death sentences of 2,747 prisoners to life imprisonment. [13] This followed another mass commutation of death sentences signed by former President Mwai Kibaki in 2009. [14]

Since 2007, Kenya has abstained from voting on all six U.N. General Assembly Resolutions calling for a moratorium on the use of capital punishment. [15]

Y a-t-il actuellement un moratoire officiel sur les exécutions dans le pays?

There is not an official moratorium on executions in Kenya, although Kenya has not carried out an execution in over 30 years, [16] and Kenyan presidents commuted over 4,000 death sentences in 2009 [17] and 2,747 death sentences in 2016. [18]

Y a-t-il eu des affaires importantes sur la peine de mort décidées au niveau des cours nationales?

The Supreme Court of Kenya rendered a hugely influential judgment in December 2017, in which it ruled that the mandatory death penalty is unconstitutional. [19] The petitioners in Muruatetu appealed to the Supreme Court after being convicted of murder and automatically sentenced to death. [20] The Supreme Court found that the right to a fair trial precludes the application of the mandatory death penalty, [21] as the right to submit evidence of mitigating factors and allowing room for judicial discretion are crucial to respecting and upholding fair trial rights. [22] The Supreme Court also struck down Kenya’s official Sentencing Policy Guidelines, which stated that courts did not have discretion in imposing the mandatory death penalty. [23] The Supreme Court further provided non-exhaustive advisory guidelines for considering mitigating factors, such as youth, character, and record of the offender, remorsefulness, possibility of reform and social re-adaption, and commission of the offense in response to gender-based violence. [24]

In 2017, the Supreme Court of Kenya rendered a judgment, Republic v. Karisa Chengo & 2 others, that dealt with the issue of whether the state’s failure to provide free legal representation for indigent persons charged with a capital offence violated the constitutional right to a fair trial. [25] In this case, three individuals were convicted of robbery with violence, and the third with rape, and were sentenced to death. [26] The Supreme Court held that the issue of whether the state ought to have provided legal representation was to be determined afresh at the High Court level, made within the criteria in the Legal Aid Act, No. 6 of 2016, which mandates legal representation at state expense where substantial injustice would otherwise result. [27]

Où peut-on se renseigner et accéder aux décisions juridiques concernant la peine de mort?

A comprehensive database of Kenya’s laws and court decisions may be found at Kenya Law Reports eKLR (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. [28]

Quelle est la procédure de recours en grâce ?

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 either for a specified or indefinite period; substitute a less severe form of punishment; or remit all or part of a punishment. [29] The Advisory Committee on the Power of Mercy—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. [30]

In cases in which a death sentence has been pronounced and there is no appeal against the sentence, the presiding judge will forward notes of evidence taken on the trial and a report containing any recommendations or observations to the president. [31] The president will consider the report, then will communicate to the judge, or his successor in office, the terms of any decision he has taken, “and the judge shall cause the tenor and substance thereof to be entered into the records of the court.” [32] Then, the president is required to issue a death warrant, an order for the commutation of the death sentence, or a pardon. [33] If the sentence is commuted for another punishment, the president will specify the other punishment. [34] Further, if the person sentenced is pardoned, the pardon shall state whether it is free or conditional. [35]

Les accusés ont-ils un procès devant jury lorsqu’ils encourent la peine de mort?

The Kenyan legal system does not provide for a trial by jury, as all cases are tried before a judge. [36] The Kenya Criminal Procedure Code previously referenced assessors, but this was removed in 2007 by the Statute Law (Miscellaneous Amendments) Act of 2007. [37]

Brève description de la procédure d’appel

Under the Constitution, every person has the right to have a dispute legally resolved by a court of law, in a fair and public manner, and every person also has the right to appeal lower court decisions. [38]

The High Court has a special division that hears serious crimes including capital offences, and individuals may appeal from the High Court to the Court of Appeals. [39] Death sentences shall not be enforced until appeals have been completed. [40] A notice of appeal against a decision in a criminal matter must be filed within 14 days of the court’s decision. [41] Though the High Court may 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. [42] After all appeals are exhausted, or if no appeal is lodged, the court sends the trial notes of evidence and any “recommendation or observations” to the president. [43] The president then determines whether to issue a death warrant, commute the sentence, or grant a pardon. [44]

Références

[1] The Constitution of Kenya, art. 26, Aug. 27, 2010.
[2] The Constitution of Kenya, art. 26(3), Aug. 27, 2010.
[3] The Constitution of Kenya, art. 21(4), Aug. 27, 2010.
[4] The Constitution of Kenya, art. 51(3)(b), Aug. 27, 2010.
[5] Maurice Oduor, The Current Status of International Law in Kenya, Africa Nazarene University Law Journal Vol. 2, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2326135, Mar. 2014.
[6] The Constitution of Kenya, arts. 2(5), 2(6), Aug. 27, 2010.
[7] Francis Karioko Muruatetu & another v. Republic, Petition No. 15 of 2015 as consolidated with Petition No. 16 of 2015, Supreme Ct. of Kenya, Dec. 14, 2017.
[8] Francis Karioko Muruatetu & another v. Republic, Petition No. 15 of 2015 as consolidated with Petition No. 16 of 2015, Supreme Ct. of Kenya, Dec. 14, 2017.
[9] Katie Campbell, affiliated with Reprieve, Email to DPW, DPW Kenya Doc. E-4, Dec. 18, 2018.
[10] Death Penalty Information Center, Supreme Court of Kenya Declares Nation’s Mandatory Death Sentences Unconstitutional, https://deathpenaltyinfo.org/node/6958, Dec. 18, 2017.
[11] Department of Public Communications, Task Force on Death Penalty Commences Assignment, Office of the Attorney General and the Department of Justice of Kenya, http://www.statelaw.go.ke/task-force-on-death-penalty-commences-assignment/, Mar. 7, 2018. Dominic Kabiru, Review of the mandatory death sentence, Kenya National Commission on Human Rights, http://www.knchr.org/Articles/ArtMID/2432/ArticleID/1053/Review-of-the-mandatory-death-sentence, Jul. 30, 2018.
[12] Kamau Muthoni and Paul Ogemba, Supreme Court hands lifeline to 7,000 death row prisoners, Standard Media, https://www.standardmedia.co.ke/article/2001263167/supreme-court-hands-lifeline-to-7-000-death-row-prisoners, Dec. 15, 2017.
[13] Amnesty Intl., Death Sentences and Executions in 2016, p. 38, ACT 50/5740/2017, Apr. 11, 2017.
[14] Edmund Blair, Kenyan president commutes all death sentences to life in prison, Reuters, https://www.reuters.com/article/us-kenya-president/kenyan-president-commutes-all-death-sentences-to-life-in-prison-idUSKCN12O1PN, Oct. 24, 2016.
[15] 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, para. 67, U.N. Doc. A/71/484/Add.2, Dec. 6, 2016. 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. 141, 144, U.N. Doc. A/69/488/Add.2, Dec. 8, 2014. 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.
[16] Death Penalty Information Center, Supreme Court of Kenya Declares Nation’s Mandatory Death Sentences Unconstitutional, https://deathpenaltyinfo.org/node/6958, last accessed Oct. 12, 2018. U.N. Office of the High Commissioner for Human Rights, Committee Against Torture Examines Kenya, http://newsarchive.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=13337&LangID=E, May 16, 2013. Oliver Mathenge, Uhuru commutes Death Row sentences to life prison terms, The Star, https://www.the-star.co.ke/news/2016/10/25/uhuru-commutes-death-row-sentences-to-life-prison-terms_c1443274, Oct. 25, 2016. Francis Karioko Muruatetu & another v. Republic, para. 70, Petition No. 15 of 2015 as consolidated with Petition No. 16 of 2015, Supreme Ct. of Kenya, Dec. 14, 2017.
[17] Amnesty Intl., Death Sentences and Executions in 2009, p. 23, ACT 50/001/2010, Mar. 30, 2010.
[18] Amnesty Intl., Death Sentences and Executions in 2016, p. 38, ACT 50/5740/2017, Apr. 11, 2017.
[19] Francis Karioko Muruatetu & another v. Republic, Petition No. 15 of 2015 as consolidated with Petition No. 16 of 2015, Supreme Ct. of Kenya, Dec. 14, 2017.
[20] Francis Karioko Muruatetu & another v. Republic, para. 2, Petition No. 15 of 2015 as consolidated with Petition No. 16 of 2015, Supreme Ct. of Kenya, Dec. 14, 2017.
[21] Francis Karioko Muruatetu & another v. Republic, para. 47, Petition No. 15 of 2015 as consolidated with Petition No. 16 of 2015, Supreme Ct. of Kenya, Dec. 14, 2017.
[22] Francis Karioko Muruatetu & another v. Republic, paras. 48–59, Petition No. 15 of 2015 as consolidated with Petition No. 16 of 2015, Supreme Ct. of Kenya, Dec. 14, 2017.
[23] Francis Karioko Muruatetu & another v. Republic, paras. 70–72, Petition No. 15 of 2015 as consolidated with Petition No. 16 of 2015, Supreme Ct. of Kenya, Dec. 14, 2017.
[24] Francis Karioko Muruatetu & another v. Republic, paras. 70–72, Petition No. 15 of 2015 as consolidated with Petition No. 16 of 2015, Supreme Ct. of Kenya, Dec. 14, 2017.
[25] Republic v. Karisa Chengo & 2 others, paras. 1, 9, 32, Petition No. 5 of 2015, Supreme Ct. of Kenya, May 26, 2017.
[26] Republic v. Karisa Chengo & 2 others, para. 2, Petition No. 5 of 2015, Supreme Ct. of Kenya, May 26, 2017.
[27] Republic v. Karisa Chengo & 2 others, para. 114, Petition No. 5 of 2015, Supreme Ct. of Kenya, May 26, 2017.
[28] The Bench Bulletin, http://kenyalaw.org/kl/index.php?id=1879, last accessed Dec. 4, 2018.
[29] The Constitution of Kenya, art. 133(1), as updated through to Aug. 27, 2010.
[30] The Constitution of Kenya, arts. 133(2)–(4), Aug. 27, 2010.
[31] Criminal Procedure Code of Kenya, sec. 332(1), Laws of Kenya Revised Edition 2017 Ch. 75, Aug. 1, 1930, as updated through to 2017.
[32] Criminal Procedure Code of Kenya, sec. 332(2), Laws of Kenya Revised Edition 2017 Ch. 75, Aug. 1, 1930, as updated through to 2017.
[33] Criminal Procedure Code of Kenya, sec. 332(3), Laws of Kenya Revised Edition 2017 Ch. 75, Aug. 1, 1930, as updated through to 2017.
[34] Criminal Procedure Code of Kenya, sec. 332(3)(b), Laws of Kenya Revised Edition 2017 Ch. 75, Aug. 1, 1930, as updated through to 2017.
[35] Criminal Procedure Code of Kenya, sec. 332(3)(c), Laws of Kenya Revised Edition 2017 Ch. 75, Aug. 1, 1930, as updated through to 2017.
[36] Criminal Procedure Code of Kenya, sec. 3, Laws of Kenya Revised Edition 2017 Ch. 75, Aug. 1, 1930, as updated through to 2017.
[37] Munyao Sila, Modern Law of Criminal Procedure, p. 4, Partridge, 2014. The Statute Law (Miscellaneous Amendments) Act, Act No. 7 of 2007, Oct. 10, 2007.
[38] The Constitution of Kenya, art. 50(2)(q), Aug. 27, 2010.
[39] Appellate Jurisdiction Act of Kenya, sec. 3, Laws of Kenya Revised Edition 2016 Ch. 9, Oct. 28, 1977, as updated through to 2016.
[40] Appellate Jurisdiction Act of Kenya, Subsidiary Legislation, Court of Appeal Rules, Rule 5(1), Act No. 152 of 2010, 2010. According to Rule 5(2), the Court may order a stay of execution on such terms as the Court may think just.
[41] Appellate Jurisdiction Act of Kenya, Subsidiary Legislation, Court of Appeal Rules, Rule 59(1), Act No. 152 of 2010, 2010.
[42] Appellate Jurisdiction Act of Kenya, sec. 7, Laws of Kenya Revised Edition 2016 Ch. 9, Oct. 28, 1977, as updated through to 2016.
[43] Criminal Procedure Code of Kenya, sec. 332(1), Laws of Kenya Revised Edition 2017 Ch. 75, Aug. 1, 1930, as updated through to 2017.
[44] Criminal Procedure Code of Kenya, sec. 332(3), Laws of Kenya Revised Edition 2017 Ch. 75, Aug. 1, 1930, as updated through to 2017.

La peine de mort en pratique

Où sont emprisonnés les condamnés à mort?

Death-sentenced prisoners are incarcerated in Kenya’s maximum-security prisons including Kamiti, Naivasha, Kingongo, Kibos, Manyani, Kodiaga, and Shimo La Tewa. [1] Female death-sentenced prisoners are housed in Lang’ata prison. [2] In some instances, death row inmates are housed in prisons that are not meant to have death-sentenced prisoners including Kitale Main Prison, which had 11 male and three female inmates on death row in 2018. [3]

Description des conditions de détention

Prison conditions in Kenya are widely reported to be substandard and have been the subject of both media and government scrutiny in recent years. [4] Detainees who face capital charges are separated from others in detention, [5] but still face the range of issues that plague the general system such as overcrowding, [6] unhygienic conditions, abuse, [7] and torture. [8] An ongoing major issue in the prison system is inmates’ lack of access to legal representation and lack of knowledge of their rights. [9]

In 2017, the Legal Resources Foundation Trust, the Resources Oriented Development Initiatives and the National Council on Administration of Justice inspected the Kenyan criminal justice system and released a report, Criminal Justice System in Kenya: An Audit. [10] The report concluded that Kenya’s detention facilities are not fit for purpose, as they are “generally old, limited in space and dilapidated and . . . there are inconsistencies in policy and practice application in every aspect investigated by the audit.” [11] The report noted that detention centers “must be guided by the following principles: the presumption of innocence [for pre-trial detainees]; the respect for dignity and humanity; and the absence of torture and ill-treatment.” [12]

Nevertheless, the actual conditions of prisons in Kenya fail to live up to these ideals. The report identified three diseases as being present at nearly all prisons: scabies, tuberculosis, and diarrhea, all of which can cause great devastation in cramped environments. [13] Further, concerns about hygiene, safe food preparation and consumption, drinking water, facilities, and personal hygiene exacerbates these issues. [14] At Shimo La Tewa, 17 “unnatural deaths” were reported, which the report attributed to a large number of people detained and long periods of incarceration. Further, Shimo Law Tewa did not respond to inquiries about measures taken to limit the spread of HIV and tuberculosis, though it appears that at least some measures were taken at other prisons including screening, counselling, health education, and segregation. [15] Lice, bed bugs, and cockroaches were reported at Shimo La Tewa. [16]

Recently, attention has been drawn to the condition of police cells, [17] after six politicians were detained in June 2014 in the Pangani police station. [18] Junet Mohamed, MP, reported that they were not fed, as there was no food, and that “[e]veryone appeared shocked at the condition in the cells…Our colleague . . . could not bear it. He suffered a running stomach shortly after we arrived, forcing him to frequently use the bucket. It was so dehumanizing. This is something I will never forget.” [19] Court cells were also reported to be subpar, without access to clean water, functioning toilets, or proper ventilation, as were remand facilities. [20]

Y a-t-il actuellement des ressortissants étrangers condamnés à mort?

No foreign nationals are known to be under sentence of death. [21]

Quelle est la nationalité de ces ressortissants étrangers condamnés à mort?

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

Y a-t-il actuellement des femmes condamnées à mort?

According to the Task Force on the Review of the Mandatory Death Sentence, Sub-committee on Resentencing, there were approximately 100 to 200 women on death row in Kenya in 2018. [22] As of December 2018, the Task Force was organizing a survey to collect more accurate figures. [23]

Y a-t-il actuellement des individus condamnés à mort qui avaient moins de 18 ans au moment des faits qui leur sont reprochés?

Persons under 18 are not eligible for the death penalty under Kenyan law. [24] In 2017, High Court Judge John Mativo issued a decision releasing six prisoners sentenced to death when they were minors. [25] Amnesty International noted that it is often the case that the age of the individual sentenced or accused is difficult to ascertain, due to difficulties finding official documents such as birth certificates. [26] We found no reports of minors on death row as of October 2018. [27]

Commentaires concernant la composition ethnique des couloirs de la mort

We did not find any information about the racial/ethnic composition of death row. [28]

Les accusés indigents encourant la peine de mort ont-ils accès à un avocat?

The Constitution of Kenya provides that indigent defendants have the right to legal representation paid for by the state. [29] On May 10th, 2016, the 2016 National Legal Aid Act (Act No. 6) commenced, the object of which is to establish a framework for indigent individuals to access legal aid. [30] The Legal Aid Service provides legal aid services funded by the state to eligible people in criminal matters. [31] In cases where an accused person is brought before the court and is charged with an offence punishable by death, the court shall order the Legal Aid Service to provide legal representation. [32] In practice, advocates interested in representing such clients apply to the Registrar of the High Court. The Registrar then allocates cases to them as and when necessary. [33]

The U.N. Human Rights Committee had noted that the 2016 Legal Aid Act excludes some categories of foreign nationals from accessing legal aid. [34]

Les accusés indigents encourant la peine de mort ont-ils accès à un avocat lors de la procédure d’appel?

The Constitution of Kenya mandates the provision of state-funded legal aid to indigent persons. [35] 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.” [36] Under the Legal Aid Act, 2016, an aided person shall not be required to provide security for costs during appeal proceedings. [37]

In 2017, Kenya launched the National Action Plan on Legal Aid to guide the implementation of policies that will lead to greater access to justice for individuals from 2017 to 2022. [38] Prior to 2017, legal aid was restricted to capital cases and was fraught with problems such as low quality of representation, low pay for lawyers, and delays in proceedings. [39] Most of the services were provided by civil society, [40] which also exacerbated gaps in access to justice between rural and urban areas with more resources. The National Action plan seeks to put the responsibility on the government for providing legal resources and seeks to make it easier for not only indigent persons but vulnerable populations such as women, children, and persons with disabilities to access legal aid. [41]

The U.N. Human Rights Committee had noted that the 2016 Legal Aid Act excludes some categories of foreign nationals from accessing legal aid. [42]

Commentaires sur la qualité de la représentation juridique

In 2017, the Republic v. Karisa Chengo & 2 others case hinged on whether a state’s failure to provide free legal representation for indigent persons charged with a capital offence violated the right to a fair trial and therefore nullified trials in which legal representation had not been provided. [43] The Supreme Court held that the issue of whether the state ought to have provided legal representation was to be determined at the High Court in a fresh appeal. [44] Nevertheless, the Court stated that “the right to legal representation at state expense . . . is a fundamental ingredient of the right to a fair trial and is to be enjoyed pursuant to the constitutional edict. We must however emphasize the fact that in accordance with the language of the Constitution, this particular right is not open ended. It only becomes available ‘if substantial injustice would otherwise result’.” [45]

Appointed capital defenders face low pay at approximately USD $150 per case and a backlog of cases, which cause delays in justice. [46] Furthermore, attorneys are only appointed after investigation, if conducted, is complete and pleas have been made, limiting their ability to influence the critical pre-trial preparations for the case. [47] Attorneys rarely conduct investigations as these are typically led by the police investigative unit. [48] Investigators often do not conduct quality investigations, and in the absence of modern forensic labs, prosecutors often rely on outdated evidence in court, which increases the risk of wrongful convictions. [49] Kenya is largely dependent on the Government Chemist to perform forensic testing, though the Government Chemist is understaffed and often uses outdated technology. [50] Forensic tests are often unreliable because of tampering, contamination, and poor conservation of the criminal evidence. [51] Other challenges include lack of or inadequate pre-trial access to evidence held by the government and a prohibition on entering into evidence photographs other than those taken by official police photographers. [52] Furthermore, some capital defense lawyers fear for their personal safety. On January 7, 2016, Willie Kimani, a veteran human rights attorney working pro-bono on a police abuse case, his client, and a taxi driver were kidnapped and murdered. [53]

Autres commentaires sur le système pénal en général

A significant issue is whether an individual’s financial situation negatively impacts his/her ability to access justice, legal representation, and to have his/her rights respected. For example, pre-trial detention practice indicates that many suspects are unable to post bail and therefore are detained for long periods of time, despite a functioning bail system and the right of all suspects including capital offence suspects to be eligible for bail. [54]

Moreover, though case law provides that capital defendants must be brought before a judge within 14 days of arrest, the government does not respect the law in practice. [55] Courts have unconditionally released defendants because the police detained them longer than legally permitted. [56] Another significant issue is the amount of time that it takes for cases to be completed. The Criminal Justice System in Kenya Audit found that the average days it takes for completed capital cases to proceed from first lodging to final judgment on appeal are 535 days at the 25th percentile, 725 days median, and 906 days at the 75th percentile. [57]

Conditions inside Kenyan prisons remain dire with detainees and prisoners facing the risk of mistreatment and torture, [58] despite the Constitution’s protection against torture. [59] In practice, police use torture and violence during interrogations and against pre-trial detainees and prisoners. [60] Human rights organizations and the media have reported cases of torture and indiscriminate police violence committed with impunity. [61] Further, informal justice systems exist alongside the formal justice system. In Northern Kenya, for instance, criminal offences are predominantly dealt with in informal systems, though serious crimes can be referred to the formal system by community leaders. [62]

Références

[1] Sam Kiplagat, 5 King’ong’o death row warders freed, The Star, https://www.the-star.co.ke/news/2013/04/27/5-kingongo-death-row-warders-freed_c767679, Apr. 27, 2013. Hezron Ochiel, Congested Kisumu prison where death stalks detainees, Standard Media, https://www.standardmedia.co.ke/article/2000168237/congested-kisumu-prison-where-death-stalks-detainees, Jul. 6, 2015. George Murage, 500 Naivasha death row prisoners join learning programme, The Star, https://www.the-star.co.ke/news/2016/01/03/500-naivasha-death-row-prisoners-join-learning-programme_c1269133, Jan. 3, 2016. Macharia Mwangi, Naivasha inmates push for replacement of life and death sentences, Daily Nation, https://www.nation.co.ke/counties/nakuru/Scrap-life-sentences--inmates-tell-MPs/1183314-3078474-mwm7d8/index.html, Feb. 16, 2016. Joseph Chitwa, Eight prison warders suspended over Kibos jail break, Citizen Digital, https://citizentv.co.ke/news/eight-prison-warders-suspended-over-kibos-jail-break-136035/, Aug. 5, 2016. African Prisons Project, Kenyan court finds mandatory death sentence unconstitutional, https://africanprisons.org/blog/2016/09/21/kenyan-court-finds-mandatory-death-sentence-unconstitutional, Sep. 21, 2016. Brenna Daldorph, In Kenya this month, prisoners voted for president for the first time ever, PRI, https://www.pri.org/stories/2017-08-22/kenya-month-prisoners-voted-president-first-time-ever, Aug. 22, 2017. Joseph Ndunda, Kamiti prisoners want Supreme Court to remove death penalty, The Star, https://www.the-star.co.ke/news/2017/10/10/kamiti-prisoners-want-supreme-court-to-remove-death-penalty_c1650253, Oct. 10, 2017. Vincent Achuka, Surviving the noose: Prison life costs you, Standard Media, https://www.standardmedia.co.ke/article/2001263283/surviving-the-noose-prison-life-and-what-it-costs-you, Dec. 16, 2017. Alphonce Mung'ahu, Miss Lang'ata prison: I'm sorry for murder, The Star, https://www.the-star.co.ke/news/2018/07/12/miss-langata-prison-im-sorry-for-murder_c1785439, Jul 12, 2018. Anne Munyua, affiliated with County Government of Nandi Legal Services, Email to DPW, DPW Kenya Doc. E-1, Nov. 15, 2018.
[2] Alphonce Mung'ahu, Miss Lang'ata prison: I'm sorry for murder, The Star, https://www.the-star.co.ke/news/2018/07/12/miss-langata-prison-im-sorry-for-murder_c1785439, Jul 12, 2018.
[3] Anne Munyua, affiliated with County Government of Nandi Legal Services, Email to DPW, DPW Kenya Doc. E-1, Nov. 15, 2018.
[4] Elvis Ondieki, Inside Kenya’s criminal justice system: Only the tough survive, Daily Nation, https://www.nation.co.ke/lifestyle/lifestyle/Inside-Kenya-tough-Prisons-/1214-3790978-i26ds8z/index.html, Jan. 29, 2017. Kenya Human Rights Commn, Statement by the Kenya Human Rights Commission on prisons, conditions of detention and policing in Kenya at the 60th Ordinary session of the African Commission on Human and People’s Rights in Niamey, Niger, http://www.khrc.or.ke/2015-03-04-10-37-01/press-releases/600-statement-by-the-kenya-human-rights-commission-on-prisons-conditions-of-detention-and-policing-in-kenya-at-the-60th-ordinary-session-of-the-african-commission-on-human-and-people-s-rights-in-niamey-niger.html, May 15, 2017.
[5] National Council on the Administration of Justice, Criminal Justice System in Kenya: An Audit, p. 318, https://acjr.org.za/resource-centre/kenya-audit.pdf, 2017.
[6] Al Jazeera, Teaching Empowerment: Prison Education in Kenya, https://www.aljazeera.com/programmes/rebel-education/2016/12/teaching-empowerment-prison-education-kenya-161216145142193.html, Feb. 8, 2017. Jessica Corredor, Discussion at the Human Rights Council of human rights violations related to the use of the death penalty, World Coalition against the Death Penalty, http://www.worldcoalition.org/Discussing-human-rights-violations-related-to-the-use-of-the-death-penalty-at-the-Human-Rights-Council.html, Mar. 7, 2017.
[7] Annettee Wambulwa, Cell dirty, I have a bucket for toilet, Deya tells court, The Star, https://www.the-star.co.ke/news/2017/08/11/cell-dirty-i-have-a-bucket-for-toilet-deya-tells-court_c1614231, Aug. 11, 2017.
[8] Renson Mnyamwezi, Manyani prisoners sue state for torture, Standard Media, https://www.standardmedia.co.ke/article/2001238953/manyani-prisoners-sue-state-for-torture, May 8, 2017.
[9] Al Jazeera, Teaching Empowerment: Prison Education in Kenya, https://www.aljazeera.com/programmes/rebel-education/2016/12/teaching-empowerment-prison-education-kenya-161216145142193.html, Feb. 8, 2017.
[10] National Council on the Administration of Justice, Criminal Justice System in Kenya: An Audit, https://acjr.org.za/resource-centre/kenya-audit.pdf, 2017.
[11] National Council on the Administration of Justice, Criminal Justice System in Kenya: An Audit, pp. xxix–xxx, https://acjr.org.za/resource-centre/kenya-audit.pdf, 2017.
[12] National Council on the Administration of Justice, Criminal Justice System in Kenya: An Audit, pp. 63–67, https://acjr.org.za/resource-centre/kenya-audit.pdf, 2017.
[13] National Council on the Administration of Justice, Criminal Justice System in Kenya: An Audit, p. 315, https://acjr.org.za/resource-centre/kenya-audit.pdf, 2017.
[14] National Council on the Administration of Justice, Criminal Justice System in Kenya: An Audit, p. 315, https://acjr.org.za/resource-centre/kenya-audit.pdf, 2017.
[15] National Council on the Administration of Justice, Criminal Justice System in Kenya: An Audit, pp. 316–317, https://acjr.org.za/resource-centre/kenya-audit.pdf, 2017.
[16] Daily Nation, Inside Kenya’s criminal justice system: Only the tough survive, https://www.nation.co.ke/lifestyle/lifestyle/Inside-Kenya-tough-Prisons-/1214-3790978-i26ds8z/index.html, Jan. 29, 2017.
[17] United Kingdom: Home Office, Operational Guidance Note: Kenya, pp. 25–26, http://www.refworld.org/cgi-bin/texis/vtx/rwmain?page=search&docid=529c6fcb4&skip=0&query=prison%20conditions&coi=KEN, Dec. 2013.
[18] Daily Nation, Inside Kenya’s criminal justice system: Only the tough survive, https://www.nation.co.ke/lifestyle/lifestyle/Inside-Kenya-tough-Prisons-/1214-3790978-i26ds8z/index.html, Jan. 29, 2017.
[19] Daily Nation, Inside Kenya’s criminal justice system: Only the tough survive, https://www.nation.co.ke/lifestyle/lifestyle/Inside-Kenya-tough-Prisons-/1214-3790978-i26ds8z/index.html, Jan. 29, 2017.
[20] Daily Nation, Inside Kenya’s criminal justice system: Only the tough survive, https://www.nation.co.ke/lifestyle/lifestyle/Inside-Kenya-tough-Prisons-/1214-3790978-i26ds8z/index.html, Jan. 29, 2017.
[21] Mark Warren, Foreigners Under Sentence of Death Worldwide, http://users.xplornet.com/~mwarren/world.html, Jan. 19, 2013.
[22] Nora Mbagathi, affiliated with Reprieve, Email to DPW, DPW Kenya Doc. E-2, Dec. 6, 2018.
[23] Nora Mbagathi, affiliated with Reprieve, Email to DPW, DPW Kenya Doc. E-2, Dec. 6, 2018.
[24] Penal Code of Kenya, sec. 25(2), Laws of Kenya Rev. Ed. 2010 Ch. 63, Aug. 1, 1930, as updated through to Dec. 22, 2014.
[25] Maureen Kakah, Court directs Parliament, AG to amend juvenile death penalty law, https://www.nation.co.ke/news/Court-orders-Parliament-amend-juvenile-death-penalty-law/1056-3924580-3pi5chz/index.html, May 12, 2017.
[26] Amnesty Intl., Death Sentences and Executions 2017, p. 8, ACT 50/7955/2018, Apr. 12, 2018.
[27] Anne Munyua, affiliated with County Government of Nandi Legal Services, Email to DPW, DPW Kenya Doc. E-1, Nov. 15, 2018.
[28] Anne Munyua, affiliated with County Government of Nandi Legal Services, Email to DPW, DPW Kenya Doc. E-1, Nov. 15, 2018.
[29] The Constitution of Kenya, art. 50(2)(h), Aug. 27, 2010.
[30] Legal Aid Act of Kenya, Act No. 6 of 2016, May 10, 2016, as updated through to 2017.
[31] Legal Aid Act of Kenya, secs. 35(1), 35(2)(b), Act No. 6 of 2016, May 10, 2016, as updated through to 2017.
[32] Legal Aid Act of Kenya, sec. 43(4), Act No. 6 of 2016, May 10, 2016, as updated through to 2017.
[33] Anne Munyua, affiliated with County Government of Nandi Legal Services, Email to DPW, DPW Kenya Doc. E-1, Nov. 15, 2018.
[34] Legal Aid Act of Kenya, sec. 36(1)(a), Act No. 6 of 2016, May 10, 2016, as updated through to 2017. U.N. Human Rights Council, Capital punishment and the implementation of the safeguards guaranteeing protection of the rights of those facing the death penalty, para. 28, U.N. Doc. A/HRC/36/26, Aug. 22, 2017.
[35] The Constitution of Kenya, art. 50(2)(h), Aug. 27, 2010.
[36] Appellate Jurisdiction Act of Kenya, Subsidiary Legislation, Court of Appeal Rules, Rule 24(1), Act No. 152 of 2010, 2010.
[37] Legal Aid Act of Kenya, sec. 74(1), Act No. 6 of 2016, May 10, 2016, as updated through to 2017.
[38] National Action Plan Legal Aid 2017–2022 Towards Justice for All, p. ix, Republic of Kenya Office of the Attorney General and Department of Justice, http://www.statelaw.go.ke/wp-content/uploads/2017/12/NAP-Legal-Aid-2017-2022.pdf, 2017.
[39] National Action Plan Legal Aid 2017–2022 Towards Justice for All, p. 15, Republic of Kenya Office of the Attorney General and Department of Justice, http://www.statelaw.go.ke/wp-content/uploads/2017/12/NAP-Legal-Aid-2017-2022.pdf, 2017.
[40] National Action Plan Legal Aid 2017–2022 Towards Justice for All, p. 6, Republic of Kenya Office of the Attorney General and Department of Justice, http://www.statelaw.go.ke/wp-content/uploads/2017/12/NAP-Legal-Aid-2017-2022.pdf, 2017.
[41] International Development Law Organization, Kenya’s First legal Aid Action Plan Formally Launched, http://www.idlo.int/news/highlights/kenya-first-legal-aid-action-plan-formally-launched, Dec. 21, 2017. National Action Plan Legal Aid 2017–2022 Towards Justice for All, p. 2, Republic of Kenya Office of the Attorney General and Department of Justice, http://www.statelaw.go.ke/wp-content/uploads/2017/12/NAP-Legal-Aid-2017-2022.pdf, 2017.
[42] Legal Aid Act of Kenya, sec. 36(1)(a), Act No. 6 of 2016, May 10, 2016, as updated through to 2017. U.N. Human Rights Council, Capital punishment and the implementation of the safeguards guaranteeing protection of the rights of those facing the death penalty, para. 28, U.N. Doc. A/HRC/36/26, Aug. 22, 2017.
[43] Republic v. Karisa Chengo & 2 others, paras. 1, 9, 32, Petition No. 5 of 2015, Supreme Ct. of Kenya, May 26, 2017.
[44] Republic v. Karisa Chengo & 2 others, para. 114, Petition No. 5 of 2015, Supreme Ct. of Kenya, May 26, 2017.
[45] Republic v. Karisa Chengo & 2 others, para. 88, Petition No. 5 of 2015, Supreme Ct. of Kenya, May 26, 2017.
[46] Anne Munyua, affiliated with County Government of Nandi Legal Services, Email to DPW, DPW Kenya Doc. E-1, Nov. 15, 2018.
[47] Anne Munyua, affiliated with County Government of Nandi Legal Services, Email to DPW, DPW Kenya Doc. E-1, Nov. 15, 2018.
[48] Anne Munyua, affiliated with County Government of Nandi Legal Services, Email to DPW, DPW Kenya Doc. E-3, Dec. 8, 2018.
[49] Anne Munyua, affiliated with County Government of Nandi Legal Services, Email to DPW, DPW Kenya Doc. E-3, Dec. 8, 2018.
[50] Anne Munyua, affiliated with County Government of Nandi Legal Services, Email to DPW, DPW Kenya Doc. E-3, Dec. 8, 2018.
[51] Anne Munyua, affiliated with County Government of Nandi Legal Services, Email to DPW, DPW Kenya Doc. E-3, Dec. 8, 2018.
[52] Latham & Watkins, Pro Bono Practices and Opportunities in Kenya, p. 370, The Pro Bono Institute, https://www.lw.com/admin/Upload/Documents/Global%20Pro%20Bono%20Survey/pro-bono-in-kenya.pdf, Sep. 2015.
[53] Jeffrey Gettleman, ‘This Has Pushed a Button’: Killings in Kenya Ignite National Outcry, New York Times, https://www.nytimes.com/2016/07/09/world/africa/kenya-police-abuse-kimani-mwenda-lawyer.html, Jul. 8, 2016. Anne Munyua, affiliated with County Government of Nandi Legal Services, Email to DPW, DPW Kenya Doc. E-3, Dec. 8, 2018.
[54] National Council on the Administration of Justice, Criminal Justice System in Kenya: An Audit, p. 62, https://acjr.org.za/resource-centre/kenya-audit.pdf, 2017. The Constitution of Kenya, art. 49(2), Aug. 27, 2010. Criminal Procedure Code of Kenya, sec. 123, Laws of Kenya Revised Edition 2017 Ch. 75, Aug. 1, 1930, as updated through to 2017.
[55] Patricia Jameria Mbote and Migai Akech, Kenya: Justice Sector and Rule of Law, p. 143, Open Society Initiative for Eastern Africa, https://www.opensocietyfoundations.org/sites/default/files/kenya-justice-law-20110315.pdf, Mar. 2011. National Council on the Administration of Justice, Criminal Justice System in Kenya: an Audit, p. 37, http://acjr.org.za/resource-centre/kenya-audit.pdf, 2017.
[56] Patricia Jameria Mbote and Migai Akech, Kenya: Justice Sector and Rule of Law, p. 143, Open Society Initiative for Eastern Africa, https://www.opensocietyfoundations.org/sites/default/files/kenya-justice-law-20110315.pdf, Mar. 2011.
[57] National Council on the Administration of Justice, Criminal Justice System in Kenya: an Audit, pp. 163–164, http://acjr.org.za/resource-centre/kenya-audit.pdf, 2017.
[58] National Council on the Administration of Justice, Criminal Justice System in Kenya: an Audit, p. 61, http://acjr.org.za/resource-centre/kenya-audit.pdf, 2017.
[59] The Constitution of Kenya, art. 29(d), Aug. 27, 2010.
[60] Penal Reform Intl., Alleged police-involved torture and killings in Kenya have sparked a movement, https://www.pri.org/stories/2016-07-11/alleged-police-involved-torture-and-killings-kenya-have-sparked-movement, Jul. 11, 2016.
[61] U.S. Dept. of State, Kenya 2017 Human Rights Report, p. 4, https://www.state.gov/documents/organization/277255.pdf, Apr. 20, 2018.
[62] Republic of Kenya Office of the Attorney General and Department of Justice, National Action Plan Legal Aid 2017–2022 Towards Justice for All, p. 17, http://www.statelaw.go.ke/wp-content/uploads/2017/12/NAP-Legal-Aid-2017-2022.pdf, 2017.

Observations et décisions des organes internationaux de protection des droits de l’homme concernant l’application de la peine de mort dans ce pays

Décisions du Comité des droits de l’homme

In 2012, the Human Rights Committee expressed regret that Kenya continued to retain the death penalty and that there were 1,582 inmates on death row. It noted that robbery continued to be a capital crime despite the fact that it does not meet the “most serious crime” standard under international law. [1]

In 2005, the Human Rights Committee likewise expressed concern that Kenyan courts imposed the death penalty for non-lethal offenses. [2] The Committee also deplored the large numbers of individuals on death row, recommended that Kenya repeal the death penalty for crimes that are not “most serious crimes” under international law, and urged Kenya to commute the death sentences of individuals who had exhausted their final appeals. [3] 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, [4] including by ensuring that people accused of murder have access to a lawyer in the initial stages of arrest. [5]

Décisions d’autres organes de protection des droits de l’homme

In the Human Rights Council’s 2015 Universal Periodic Review of Kenya, states commended Kenya’s de facto moratorium on capital punishment, [6] recommended Kenya establish a de jure moratorium, [7] and urged Kenya to abolish the death penalty entirely. [8] Kenya responded that it would continue to debate the abolition of the death penalty [9] and has since outlined its efforts in a UPR implementation plan. [10] Kenya committed to spreading awareness of the need to abolish the death penalty, undertaking a public perception survey on the need for abolition, and amending the provisions in the Penal Code to abolish the death penalty, [11] the latter of which was to be implemented in 2019. [12] Kenya noted recommendations to ratify the Second Optional Protocol, aiming at the abolition of the death penalty, [13] and stated “that it had come through a long period of national dialogue on the new Constitution … and the requisite political and social consensus on [criminal law and death penalty] was a work-in-progress.” [14]

In 2013, the Committee Against Torture noted that despite the de facto moratorium on the death penalty, concerns remained about the high number of death sentences imposed, and the condition of those still remaining on death row. [15] It urged Kenya to abolish the death penalty and to ensure that all prisoners on death row were treated humanely and afforded the protections guaranteed by the Convention against Torture. It stated that Kenya should support the Kenya National Commission on Human Rights in conducting a survey and awareness-raising measures regarding public opinion on executions. [16]

Références

[1] U.N. 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. Human Rights Committee, Concluding Observations of the Human Rights Committee: Kenya, para. 13, U.N. Doc. CCPR/CO/83/KEN, Apr. 29, 2005.
[3] U.N. Human Rights Committee, Concluding Observations of the Human Rights Committee: Kenya, para. 13, U.N. Doc. CCPR/CO/83/KEN, Apr. 29, 2005.
[4] U.N. 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.
[5] U.N. Human Rights Committee, Concluding Observations of the Human Rights Committee: Kenya, para. 17, U.N. Doc. CCPR/CO/83/KEN, Apr. 29, 2005.
[6] U.N.G.A., Human Rights Council, Report of the Working Group on the Universal Periodic Review, para. 142, U.N. Doc. A/HRC/29/10, Mar. 26, 2015.
[7] U.N.G.A., Human Rights Council, Report of the Working Group on the Universal Periodic Review, paras. 118, 135, U.N. Doc. A/HRC/29/10, Mar. 26, 2015.
[8] U.N.G.A., Human Rights Council, Report of the Working Group on the Universal Periodic Review, paras. 67, 142, U.N. Doc. A/HRC/29/10, Mar. 26, 2015.
[9] United Nations Human Rights Office of the High Comm8issioner, Human Rights Council adopts outcomes of Universal Periodic Review of Kenya, Armenia and Guinea-Bissau, https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=16151&LangID=E, Jun. 25, 2015.
[10] Office of the Attorney General of Kenya, Universal Periodic Review Implementation Plan for Kenya (2015-2019), http://www.statelaw.go.ke/wp-content/uploads/2016/08/UPR-DRAFT-MATRIX-MAY-2016.pdf, last accessed Dec. 19, 2018.
[11] Office of the Attorney General of Kenya, Universal Periodic Review Implementation Plan for Kenya (2015-2019), pp. 9–10, http://www.statelaw.go.ke/wp-content/uploads/2016/08/UPR-DRAFT-MATRIX-MAY-2016.pdf, last accessed Dec. 19, 2018.
[12] Office of the Attorney General of Kenya, Universal Periodic Review Implementation Plan for Kenya (2015-2019), pp. 9–10, http://www.statelaw.go.ke/wp-content/uploads/2016/08/UPR-DRAFT-MATRIX-MAY-2016.pdf, last accessed Dec. 19, 2018.
[13] UPR Info, UPR recommendations received by Kenya, https://www.upr-info.org/database/index.php?limit=0&f_SUR=88&f_SMR=All&order=&orderDir=ASC&orderP=true&f_Issue=All&searchReco=&resultMax=300&response=&action_type=&session=&SuRRgrp=&SuROrg=&SMRRgrp=&SMROrg=&pledges=RecoOnly, last accessed Dec. 19, 2018. U.N.G.A. Human Rights Council, Report of the Working Group on the Universal Periodic Review* Kenya, paras. 67, 118, 135, 142.58, 142.61, 142.63, 142.87, 143.7, 143.10, 143.11, 143.18, 143.26, 143.38, 143.39, 143.40, 143.41, 143.42, 143.43, 143.44, 143.7, U.N. Doc. A/HRC/29/10, Mar. 26, 2015. Universal Periodic Review – Kenya, Matrice of recommendations, UPR of Kenya - Second Cycle Thematic list of recommendations, paras. 142.58, 142.61, 142.63, 142.87, 143.18, 143.7, 143.10, 143.26, 143.32, 143.38, 143.39, 143.40, 143.41, 143.42, 143.43, 143.44, 143.7, https://lib.ohchr.org/HRBodies/UPR/Documents/Session21/KE/KenyaMatriceRecommendations.pdf, Jan. 22, 2015.
[14] U.N.G.A., Human Rights Council, Report of the Working Group on the Universal Periodic Review, para. 83, U.N. Doc. A/HRC/29/10, Mar. 26, 2015.
[15] U.N. Committee Against Torture, Conv. Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Kenya, Concluding Observations, para. 33. CAT/C/KEN/CO/2, Jun. 19, 2013.
[16] U.N. Committee Against Torture, Conv. Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Kenya, Concluding Observations, para. 33. CAT/C/KEN/CO/2, Jun. 19, 2013.

Autres sources d’informations et contact

Membre(s) directs de la Coalition mondiale contre la peine de mort

None.

Autres organisations non gouvernementales ou individus engagés sur le thème de la peine de mort

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 Legal Resources Foundation (http://www.lrf-kenya.or.ke/home) has reported on prison conditions.

The Katiba Institute (http://www.katibainstitute.org/) litigates on constitutional issues relating to human rights. They have participated as amicus curiae in Francis Karioko Muruatetu & another v. Republic, which challenged Kenya’s mandatory death penalty. [1]

Rapports et publications utiles

National Council on the Administration of Justice, Criminal Justice System in Kenya: an Audit, http://acjr.org.za/resource-centre/kenya-audit.pdf, 2017.

National Action Plan Legal Aid 2017-2022 Towards Justice for All, Republic of Kenya Office of the Attorney General and Department of Justice, http://www.statelaw.go.ke/wp-content/uploads/2017/12/NAP-Legal-Aid-2017-2022.pdf, 2017.

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, Mar. 2012.

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 at http://www.knchr.org/.

Autres remarques sur ce pays

Though no official executions have been carried out since the 1980s, extrajudicial killings remain prevalent and largely impact young people from slums and marginalized groups. [2] Extrajudicial killings and excessive force have been used during elections, [3] amid a climate of impunity for police transgressions. [4] The government has also been accused of using secret police death squads to assassinate those suspected of terrorist or criminal activity. [5]

In 2011, Kenya created the Independent Policing Oversight Authority to monitor and oversee the police, including issues related to liability for deaths, but extrajudicial killings continue. [6]

Références

[1] Katiba Institute Participates in Challenging the Mandatory Death Penalty at the Supreme Court, Katiba Institute, http://www.katibainstitute.org/katiba-challenges-the-mandatory-death-penalty-at-the-supreme-court/, Dec. 15, 2016. Francis Karioko Muruatetu & another v. Republic, Petition No. 15 of 2015 as consolidated with Petition No. 16 of 2015, Supreme Ct. of Kenya, Dec. 14, 2017.
[2] Nduta Waweru, What You Need To Know About Extrajudicial Killings In Kenya, The Daily Vox, https://www.thedailyvox.co.za/need-know-extrajudicial-killings-kenya-nduta-waweru/, Jul. 27, 2017.
[3] Amnesty Intl., Kenya 2017/2018, https://www.amnesty.org/en/countries/africa/kenya/report-kenya/, last accessed May 20, 2018. Robyn Dixon, 24 killed in Kenyan election violence, many after police open fire on opposition protesters, rights group says, Los Angeles Times, http://www.latimes.com/world/africa/la-fg-kenya-election-killing-20170812-story.html, Aug. 12, 2017.
[4] Silas Apollo, Amnesty report says Kenya tops Africa in extrajudicial killings, Daily Nation, https://www.nation.co.ke/news/Kenya-top-Africa-police-shootings/1056-3824890-1183k27/index.html, 2017, Feb. 23, 2017.
[5] Al Jazeera, Killing Kenya, https://www.aljazeera.com/programmes/peopleandpower/2015/09/killing-kenya-150923092758366.html, Sep. 23, 2015.
[6] Nduta Waweru, What You Need To Know About Extrajudicial Killings In Kenya, The Daily Vox, https://www.thedailyvox.co.za/need-know-extrajudicial-killings-kenya-nduta-waweru/, Jul. 27, 2017.

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