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The Death Penalty and the New Constitution of Kenya

Andrew Novak*

On July 30, 2010, the Court of Appeal of Kenya became the third highest court on the African continent to invalidate the mandatory death penalty for murder.1 The Court found that an automatic death sentence upon a conviction for murder violated the Kenyan Constitution's guarantees of the right to life, the right to be free from cruel and inhuman punishment, and the right to a fair trial, since an automatic sentence precluded a sentencing hearing.2 Less than a week later, Kenyan citizens went to the polls to ratify a new constitution; this only five years after a prior constitutional draft was defeated and less than two years after a close presidential election divided the nation with disastrous consequences.3 Although the death penalty survives in the new constitution, Kenya remains a de facto abolitionist country that has not carried out an execution in twenty-five years; given political constraints, Kenya is unlikely to ever resume executions.4 The 2010 Constitution of Kenya

Until August 2010, Kenya’s constitution was an amended version of the original constitution dating from independence on December 12, 1963.5 Agitation for a replacement to Kenya’s heavily-modified independence constitution began during the presidency of Daniel arap Moi in the early 1990s.6 Although President Moi had ushered in multiparty rule, he did so in a way that preserved the dominance of the party in power since independence, the Kenya African National Union (KANU).7 Moi won two irregular election campaigns: the first with only 36% of the vote against a divided opposition in 1992 and the second against another splintered field in 1997.8 The first major supporters of constitutional reform were lawyers, who sought to reduce the president’s executive power and create a comprehensive and enforceable bill of rights.9 In 1997, the Constitution of Kenya Review Act was enacted. It outlined a three-part constitutional review process that included initial consultation, draft revisions by a national constitutional convention, and ratification by Parliament.10 The goal was to install a new constitution by the 2002 elections. In June 2002, Moi announced he was stepping down as president, with elections to be held in December.11 In the months prior to the elections, however, Moi dissolved Parliament, a power he had under the independence constitution, and prevented ratification of the new constitution.12 In the December 2002 elections, the oppositional party, the National Rainbow Coalition (NARC), agreed to a unity pact signed by its leader, Raila Odinga, and coalition leader Mwai Kibaki, in which Kibaki would become president and Odinga prime minister under the new constitution.13 Consequently, Odinga sat out the election, and NARC surprisingly defeated KANU-endorsed candidate Uruhu Kenyatta by a wide margin.14 The draft constitution, named the Bomas Draft after the location of the talks, was never enacted by Parliament or presented as a referendum. A major issue was the creation of a powerful prime minister position, which was supported by the convention delegates; Odinga endorsed the inflating of the position and Kibaki opposed it. Once delegates voted down a consensus draft of the proposal, Kibaki walked away from the negotiations.15

Alarmed by the transfer of power from the presidency to a strong prime minister, members of President Kibaki’s cabinet watered down the Bomas Draft, meeting widespread opposition.16 The Kenya electorate voted on the revised document, the so-called Wako, or Kilifi, Draft, in November 2005. Odinga’s political base, crucial to NARC’s victory in 2002, joined KANU in opposing the draft. The constitution was not ratified; 57% of the electorate and seven out of eight provinces turned it down.17 The failure of the constitutional referendum proved to

Kenya

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extremely close and shrouded in controversy. More than 1,000 people died in the violence that followed the elections. 18

The death penalty was in place to be a central divisive issue before the referendum vote, particularly because, in 2007 and 2008, Kenya abstained from voting at the UN General Assembly on a worldwide moratorium on executions, and in August 2009, Kibaki commuted all death sentences.19 In February 2010, Kenya notified the United Nations Human Rights Council that the de facto moratorium on the death penalty would remain in place, although it rejected calls to abolish the practice.20 However, the topic was eclipsed in pre-referendum debate. Instead, church led opposition accentuated the legal status of abortion and the formation of separate customary courts, or Kadhis’ Courts, which would apply Islamic law to certain property, family, and probate disputes.21 The Constitution passed ratification, with 67% of voters in favor and 31% opposed.22 It was accepted in seven of the eight provinces, losing only in Rift Valley Province, a sharp change from the 2005 referendum results. The following figures show the vote by district in 2005 (left) and 2010 (right):

2005 2010

Figures: White areas indicate districts where the constitution won by more than a 10% margin; gray indicates areas where the constitution won narrowly, by less than 10%; and black areas indicate where the constitution was not ratified. The maps are somewhat rough, as results are reported by constituency and province, not by district, and consequently required some creativity on the part of the author. In both cases, the base of President Mwai Kibaki—the Kikuyu regions in central Kenya—voted overwhelmingly for both constitutional drafts. In a similar fashion, the base of former President Daniel arap Moi—the Kalenjin regions in west central Kenya—voted heavily against both drafts. Moi was the most powerful voice opposed to ratification in 2010.23 The Swahili, Somali, and Islamic zones in the north and east of the country proved to be swing districts, as was the Luo ethnic base of Prime Minister Raila Odinga in the far west. Odinga’s support of the constitution helped deliver Nyanza Province by an enormous margin, unlike in 2005. The constitution’s protection of the Islamic customary courts ensured ratification of over 90% in Coast, Eastern, and Northeastern Provinces.24 The constitution polled less well in the gray areas, which have pluralities of Maasai and Kamba ethnic communities, both of whom were members of Moi’s KANU coalition.25

The new constitution entered into force on August 27, 2010. It generally sets up an American-style system of

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and balances by creating a bicameral legislature, a supreme court, and a president who is both head of state and head of government. 26 Greater powers are also devolved to local governments.27 Although the new constitution does away with the powers of the prime minister position, now held by Odinga, polls show that Odinga is favored to win the presidency in 2012, as Kibaki is barred from seeking another term.28 A number of constitutional provisions are intended to increase transparency of the national treasury, reduce corruption, and establish an independent electoral oversight body. 29 Other notable provisions include the legalization of dual citizenship and a process by which gradual land reform can take place.30 Although the new constitution retained the death penalty, recent developments may incrementally progress towards abolition of the practice in Kenya.

The Fall of the Mandatory Death Penalty in Kenya: Mutiso v. Republic

The new constitution of Kenya, like the independence constitution, permits the death penalty.31 Under the previously followed English common law, the death penalty was mandatory upon a conviction for murder; no mitigating circumstances could be considered.32 Although the practice was exported from England to its empire, mandatory death sentences have been in rapid decline worldwide following the invalidation of the practice by the United States Supreme Court, the Supreme Court of India, and the Privy Council in London hearing appeals from the Commonwealth Caribbean.33 The Supreme Court of Uganda and the Supreme Court of Appeal of Malawi imported the jurisprudential trend to the African continent.34 The mandatory death penalty was always unfit for developing African legal systems, being that it was out of sync with political realities prevailing in African common law and Kenya in particular. The penalty was too harsh; by 2009, about 4,000 people were on death row in Kenya, compromising at least one-fifth of the world's death row population.35 Kenya's mandatory death penalty regime sent an enormous number of men to death row but almost never sent them to the gallows. The death penalty appears to have been rare in pre-colonial Africa. Generally speaking, the Maasai, Kikuyu, and Kamba peoples preferred to impose sophisticated payment schemes to provide economic compensation to the family of a murder victim in lieu of imprisonment.36 The British relied on the death penalty not only to deter crime but also to prevent challenges to the colonial order and establish coercive state power.37 Under the British, the death penalty was used at somewhat moderate levels in Kenya; between 1908 and 1956, 459 persons were executed.38 The Mau Mau Emergency, brought about by a Kikuyu uprising in 1952, changed the calculus; between 1952 and 1958, 2,059 mostly Kikuyu people were sentenced to death for political and extraordinary crimes, 1,090 of these people were executed.39 The death penalty survived in independent Kenya, constitutionally protected by a savings clause that stated, “[n]o person shall be deprived of his life intentionally save in execution of the sentence of a court in respect of a criminal offence under the law of Kenya of which he has been convicted.”40 While Kenya’s new constitution has a slightly different clause, it prevents the abolishment of the death penalty through constitutional challenge.41 Godfrey Ngotho Mutiso was convicted of premeditated murder for a crime that took place on November 4, 2004, after a dispute over a petty larceny. He was sentenced to death by hanging.42 The Court of Appeal did not consider the appeal moot since a mass commutation by President Kibaki in August 2009 reduced all death sentences in the country, including Mutiso’s sentence, to life imprisonment.43 The Court indicated that President Kibaki may have been acting to prevent “death row syndrome,” the legal doctrine that espouses that harsh prison conditions or excessive delay in carrying out an execution can make an otherwise constitutional sentence unconstitutional.44 Indeed the Court cited Ugandan and Zimbabwean jurisprudence which found that excessive delay in carrying out death sentences may render them unconstitutional, and further noted that “[u]nfortunately” no one raised the issue in the Mutiso case.45 The Court left the door open to a death row syndrome challenge in the future.

The Kenyan Penal Code authorized death by hanging as a mandatory sentence for murder, armed robbery, attempted aggravated robbery, and treason.46 Although the specific challenge was for murder, the judges, Philip Waki, Riaga Omolo and Joseph Onyango Otieno, noted that they “doubt if different arguments could be raised in

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respect of other capital offenses,” such as treason and aggravated robbery.47 The judges agreed that the mandatorynature of the death penalty was not constitutionally required; consequently, it was open to challenge.48 The judges found that the mandatory death penalty violated the Kenyan constitution on three grounds. First, the Court found that the mandatory nature of the death penalty violated the right to life guaranteed by Kenya’s bill of rights, which does not permit the consideration of mitigating factors.49 Second, the Court found that because the penalty does not distinguish among accused persons, the result may be “wholly disproportionate to the accused’s criminal responsibility,” and consequently cruel, inhuman, and degrading punishment.50 Third, the Court also suggested that because the mandatory death penalty did not permit a sentencing hearing, the practice may violate the right to a fair trial.51 The Court cited a wide array of foreign jurisprudence, especially relying on the decisions of the Malawian and Ugandan high courts, countries with constitutions that were in pari materia with Kenya’s constitution.52

The Kenyan decision follows a growing international trend away from mandatory death penalty practices and draws on a number of foreign decisions that are part of a growing body of transnational death penalty jurisprudence, a kind of “common law,” that is harmonizing death penalty regimes.53 To the extent that the Kenyan Court of Appeal found that robust exercise of executive clemency did not save a mandatory death penalty regime, the Court is in accord with this body of jurisprudence.54 Finally, the Court found that the new constitution did not change the analysis, as the retention of the death penalty was indicative of the drafter’s intent, particularly as it followed a period of public consultation.55 Because Kenya is one of the more legally advanced countries in Commonwealth Africa, the fall of the mandatory death penalty in the country may impact other test cases in countries operating under a similar constitutional framework. Should Kenya’s 2010 constitution usher in a period of peace and stability, especially after the election crisis of 2007-08, the stature of Kenyan jurisprudence may increase even further. _________________________ * Andrew Novak is Attorney-Advisor to the Hon. Pamela Lakes Wood, Administrative Law Judge, U.S. Department of Labor. J.D. (2009), Boston University School of Law. M.Sc., African Politics (2006), School of Oriental and African Studies. B.A., International Affairs (2006), George Washington University. 1 Kenya follows Malawi (2007) and Uganda (2009). For Malawi, See Kafantayeni, et al. v. Attorney Gen., [2007] MWHC 1, slip op. at 6-7 (Malawi H.C.), affirmed by Jacob v. Republic, MSCA Crim. App. No. 16 of 2006 (July 19, 2007)(Malawi Sup. Ct. App.)(unreported). For Uganda, see Attorney Gen. v. Kigula, et. al., [2009] UGSC 6, slip op. at 63-64 (Uganda S.C.). The present author discussed both decisions in an earlier article. Andrew Novak, The Decline of the Mandatory Death Penalty in Common Law Africa: Constitutional Challenges and Comparative Jurisprudence in Malawi and Uganda, 11 LOY. J. PUB. INT. L. 19, 62, et seq. (2009). 2 Mutiso v. Republic, Crim. App. No. 17 of 2008 (July 30, 2010) (Kenyan Ct. App.), slip op. at 28-29. 3 See “5.9m Kenyans Approve New Law,” CAPITAL NEWS (Nairobi), Aug. 5, 2010 available at: http://www.capitalfm.co.ke/news/Kenyanews/5.9m-Kenyans-approve-new-law-9357.html. 4 According to the abolitionist NGO Hands Off Cain, the last hanging in Kenya took place in 1987, when the August 1, 1982, coup plotters Hezekiah Ochuka and Pancras Oteyo Okumu were executed following a court-martial. See Hands Off Cain, “Kenya,” available at: http://www.handsoffcain.info/bancadati/schedastato.php?idcontinente=25&nome=kenya (last accessed Sept. 15, 2010). 5 Chanan Singh, The Republican Constitution of Kenya: Historical Background and Analysis, 14 INT’L & COMP. L.Q. 878, 897-98 (1965). The Constitution followed earlier negotiations at Lancaster House in 1960 and a second constitutional conference in 1962, both of which provided for Kenya’s transitioning legal status in the British Empire from Crown Colony to Dominion to independence. Id. at 893-97. A year after Kenya’s independence, new constitutional amendments led to Kenya’s transition from a parliamentary system to a strong presidential system. Id. at 904. Over time, further amendments continued to transfer power to Kenya’s presidency. See H.W.O. Okoth-Ogendo, The Politics of Constitutional Change in Kenya Since Independence, 1963-98, 71 AFR. AFF. 9, 10 (1972). 6 Diane Ciekawy, Constitutional and Legal Reform in the Postcolony of Kenya, 25 ISSUE: J. OF OPINION 16 (1997) (noting the rise of a “demand for constitutional and legal reform” following the 1992 elections, led by “lawyers, academics, clergy members and politicians”). 7 Martin Meredith, The Fate of Africa: A History of Fifty Years of Independence, 403-04 (2005). 8 Joel D. Barkan & Njuguna Ng’ethe, Kenya Tries Again, 9(2) J. DEMOCRACY 32, 32-33, 40-41 (1998); Stephen Brown, Authoritarian Leaders and Multiparty Elections in Africa: How Foreign Donors Help to Keep Kenya’s Daniel arap Moi in Power, 22 THIRD WORLD Q. 725, 730 (2001). 9 Id. at 35 (describing how a group of reformist lawyers published a proposal for reduced presidential power in Nairobi Law Monthly). 10 Alicia L. Bannon, Note, Designing a Constitution-Drafting Process: Lessons from Kenya, 116 YALE L.J. 1824, 1832 (2007). 11 Stephen Brown, Theorising Kenya’s Protracted Transition to Democracy, 22 J. CONTEMP. AFR. STUD. 325, 329 (2004). 12 Bannon, supra note 10 at 1834. 13 Brown, supra note 11 at 334. 14 David Throup, The Kenya General Election: December 27, 2002, 14 AFRICA NOTES 1 (2003). 15 Bannon, supra note 10 at 1838. 16 Id. at 1838-39. 17 Id. at 1839-41. 18 Stephen Brown, Donor Responses to the 2008 Kenyan Crisis: Finally Getting it Right?, 27 J. CONTEMP. AFR. STUD. 389 (2009).

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19 See UN Department of Public Information, General Assembly Will Reaffirm Resolution on Death Penalty Moratorium, Nov. 20, 2008, GA/SHC/3939; “Kenyan President Praised for Commuting 4,000 Death Sentences,” Catholic News Agency, August 5, 2009. 20 National Report of Kenya Submitted in Accordance with Paragraph 15(a) of the Annex to the Human Rights Council Resolution 5/1, A/HRC/WG.6/8/KEN/1 (UN Human Rights Council)(Feb. 22, 2010); Death Penalty and Ban on Gay Unions to Stay, DAILY NATION ON THE WEB (May 11, 2010). 21 See, e.g., “Church Position: No to Unamended Draft,” Catholic Information Service for Africa, April 13, 2010, available at http://allafrica.com/stories/201004140314.html (listing abortion and the Khadis’ Courts as the primary issues in the referendum). 22 For results, See the Interim Independent Electoral Commission,, available at http://www.iiec.or.ke/ (last accessed Sept. 10, 2010). 23 Robin Dixon, “Kenya’s Vote on Constitution May Renew Tribal Conflicts,” L.A. TIMES, Aug. 3, 2010, available at http://articles.latimes.com/2010/aug/03/world/la-fg-kenya-election-20100804. 24 Beth Elise Whitaker & Jason Giersch, Voting on a Constitution: Implications for Democracy in Kenya, 27 J. CONTEMP. AFR. STUD. 1, 1-2 (2009). The failure of both Christians and Muslims to be satisfied with the Islamic Courts (Kadhis’ Courts) provision of the Wako Draft contributed to its defeat in the referendum. The courts have existed since independence and were originally set up by the British to decide matters of marriage, divorce, and inheritance. Opponents felt the Courts’ jurisdiction was discriminatory. Anne Cussac, Muslims and Politics in Kenya: The Issue of Kadhis’ Courts in the Constitution Review Process, 28 J. MUSLIM MINORITY AFF. 289, 289 (2008). 25 GEOFF SAYER, KENYA: PROMISED LAND? 23 (1998). 26 See generally KENYA CONST. Ch. 8-10 (2010). 27 Id. at Ch. 11. 28 Mugumo Munene, “Raila the Man to Beat in 2012,” DAILY NATION ON THE WEB (Aug. 21, 2010)(showing Odinga polling at 46%, with Uruhu Kenyatta in second place at 13%). 29 Id. at Ch. 6 (leadership and integrity); Ch. 7 (electoral system); and Ch. 12 (public finance). 30 Id. at art. 16 (dual citizenship) and Ch. 6 (land). 31 The Bomas Draft, however, did not contain a death penalty savings clause. See BOMAS DRAFT art. 34. 32 EVAN MANDRY, CAPITAL PUNISHMENT: A BALANCED EXAMINATION 239-40 (2005). 33 See Woodson v. North Carolina, 240 U.S. 280 (1976)(finding the mandatory death sentence violated Eighth Amendment of U.S. Constitution); Mithu v. State of Punjab, (1983) 3 S.C.R. 413 (India Sup. Ct.)(striking down the mandatory death sentence for murder); Macchi Singh v. State of Punjab, (1983) 3 S.C.R. 413 (India Sup. Ct.) (establishing an American-style discretionary death sentence regime); The Queen v. Hughes, [2002] 2 W.L.R. 1058, 2 A.C. 259 (Privy Council)(striking down the mandatory death sentence in St. Lucia); Fox v. The Queen, [2002] 2 W.L.R. 1077, 2 A.C. 284 (St. Kitts and Nevis); Reyes v. The Queen, [2002] 2 W.L.R. 1034, 2 A.C.235 (Belize); Watson v. The Queen, [2004] 3 W.L.R. 841 (Jamaica); Bowe v. The Queen, [2006] 1 W.L.R. 1623 (Bahamas). 34 Kafantayeni, et al. v. Attorney Gen., [2007] MWHC 1, slip op. at 6-7 (Malawi High Ct.), affirmed by Jacob v. Republic, MSCA Crim. App. No. 16 of 2006 (July 19, 2007)(Malawi Sup. Ct. App.)(unreported). Attorney Gen. v. Kigula, et. al., [2009] UGSC 6, slip op. at 63-64 (Uganda Sup. Ct.). 35 “Kenya Stops Using Death Penalty,” USA TODAY, Sept. 15, 2009, available at http://www.usatoday.com/news/world/2009-09-15-deathpenalty_N.htm. 36 S. S. Ole Sankan, THE MAASAI 14 (1976); Neil McGlashan, Indigenous Kikuyu Education, 63 AFR. AFF. 47, 51 (1964); D.J. Penwill, KAMBA CUSTOMARY

LAW: NOTES TAKEN IN THE MACHAKOS DISTRICT OF KENYA COLONY 78-79 (1951). 37 Stacey Hynd, Killing the Condemned: The Practice and Process of Capital Punishment in British Africa, 1900s-1950s, 49 J. Afr. Hist. 403, 404 (2008). 38 Id. at 406. 39 David Anderson, HISTORIES OF THE HANGED: THE DIRTY WAR IN KENYA AND THE END OF EMPIRE 6-7 (2005). At no other time and at no other place in the history of British imperialism was the state execution used on such a large scale. Id. at 7. 40 KENYA CONST. art. 71(1)(Former constitution). See also, Anthony Wambugu Munene, The Bill of Rights and Constitutional Order: A Kenyan Perspective, 2 AFR. HUM. RTS. L.J. 135, 145 (2002). 41 “Every person has the right to life. The life of a person begins at conception. A person shall not be deprived of life intentionally, except to the extent authorised by this Constitution or other written law.” KENYA CONST. art. 26(1)-(3)(New constitution). 42 These facts are recounted in Mutiso v. Republic, Crim. App. No. 17 of 2008 (July 30, 2010), slip op. at 4-7. 43 Id. at 10, 20. For more on the commutation, See “Kenya Stops Using Death Penalty,” USA TODAY, Sept. 15, 2009, available at http://www.usatoday.com/news/world/2009-09-15-deathpenalty_N.htm. 43 Id. at 14. 44 Id. at 17. The Court cited Attorney Gen. v. Kigula, et. al., [2009] UGSC 6, slip op. at 63-64 (Uganda Sup. Ct.); and Catholic Commission for Justice and Peace v. Attorney General, [1993] 2 L.R.C. 277. 45 Kenya Penal Code §§25, 40, 60, 204, 296(2), 297(2). 46 Mutiso, supra note 41, slip op. at 36. 47 Id. at 28. 48 Id. at 24. The right to life is at KENYA CONST. art. 71(1)(Former constitution); art. 26(1)(New constitution). 49 Mutiso, supra note 41, slip op. at 25. The prohibition on cruel, inhuman, and degrading treatment and punishment is at KENYA CONST. art. 74(1)(Former constitution); art. 29(f)(New constitution). 50 This is less explicitly stated. See Mutiso, supra note 41, slip op. at 29, 33-34 (stating appellant’s position and quoting from the Supreme Court of Uganda). Likewise, the Court also considered the separation of powers argument (i.e., that the mandatory death penalty unconstitutionally denies the judicial branch sentencing power) and cited the Ugandan Supreme Court in Kigula. Id. at 29, 34. 51 Id. at 30. 52 For a more extensive version of this argument, see Paolo Carozza, ‘My Friend is a Stranger’: The Death Penalty and the Global Ius Commune of Human Rights, 81 TEX.L.REV. 1031, 1036 (2002). 53 Compare Mutiso, supra note 41, slip op. at 13-14, and, e.g., Edwards v. Bahamas, Case 12.07 Inter-Am. C.H.R. Report No. 48/01 OEA/Ser.L./V/II.111, doc 20 (2001) at ¶ 166, in which the Inter-American Commission on Human Rights found that executive clemency does not sufficiently individualize sentences. 54 Mutiso, supra note 41, slip op. at 23-24. “[T]he death penalty remains a lawful sentence in Kenya and appears set to remain so for a long time to come.” 55 Id. at 24.