1. Overview. 2. Background. Constitution of Kenya, 2010

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1 Proposed Revisions to the Mandatory Death Penalty and Life Imprisonment in accordance with direction of the Supreme Court of Kenya in Francis Karioko Muruatetu v. Republic Of Kenya (Petition No. 15 of 2015) 1. Overview By Judgment dated 14 December 2017 in Francis Karioko Muruatetu v. Republic Of Kenya, 1 the Supreme Court of Kenya at Nairobi declared the mandatory nature of the death penalty contained in section 204 of the Penal Code 2 to be unconstitutional. 3 The Court further found that a life sentence should not necessarily mean the natural life of the prisoner, rather it could also mean a certain minimum or maximum time to be set along established parameters. 4 The Court directed the Attorney General, the Kenya Law Reform Commission and the Speakers of the National Assembly and Senate to give effect to its judgment on the mandatory nature of the death sentence and parameters of what ought to constitute life imprisonment through any necessary amendments, formulation and enactment of statute law. The Court further granted the Attorney General and Director of Public Prosecutions twelve months to prepare a progress report identifying an appropriate framework to address sentence re-hearings for other persons subject to the mandatory death penalty. 5 Following is a detailed review of the legislative context, the Court s judgment and reasoning, domestic sentencing policy, and international law and comparative practices, followed by proposed revisions to the relevant sentencing provisions of the Penal Code. 2. Background Constitution of Kenya, 2010 Several provisions of the 2010 Constitution (COK2010) are directly relevant to the substantive and procedural rights of persons accused of committing crimes. The most pertinent for the purposes of section 204 is, of course, Article 26(3) which stipulates that a 1 [2017] eklr, Petition No. 15 of 2015 (as consolidated with Petition No 16 of 2015) [Muruatetu]. 2 Cap Muruatetu, supra note 1 at para Ibid. at para Ibid. at para

2 person shall not be deprived of life intentionally, except to the extent authorized by written law. In other words, the Constitution permits the death penalty if provided for by law. It is important to note, however, that the wording of Article 26(3) is permissive, ie. it does not make the death penalty mandatory, and restrictive, i.e. the intentional deprivation of life the death penalty is an exception to the general right to life. Closely related to the right to life, and likewise directly relevant to the issue of sentencing, is the right to freedom and security of the person guaranteed in Article 29, which includes protection from inter alia any form of violence from public sources, and being treated or punished in a cruel, inhuman or degrading manner. With respect to procedural rights for those accused of a crime, Article 50 of the Bill of Rights guarantees the right to a fair trial, including the right to be informed of a charge with sufficient detail to answer it, to adduce evidence, and to appeal a conviction. One must always bear in mind when analysing the provisions of the Constitution that Article 259 provides that it must be interpreted in a manner that (a) promotes its purposes, values and principles; (b) advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights; (c) permits the development of the law; and (d) contributes to good governance. Further, when applying the specific provisions of the Bill of Rights, including the above noted protections, Articles 20(3) and (4) stipulate that a court shall develop the law to the extent that it does not give effect to a right or fundamental freedom, adopt the interpretation that most favours the enforcement of a right or fundamental freedom and promote the spirit, purport and objects of the Bill of Rights. In this respect, Article 19(2) clarifies that the purpose of recognizing and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realization of the potential of all human beings. Finally, in regards to the obligations of legislators relating to the Bill of Rights, Article 21 dictates that it is the fundamental duty of every State organ to observe, respect, protect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights and specifically to enact and implement legislation to fulfil its international obligations in respect of human rights and fundamental freedoms. Article 24 of the Constitution addresses the limitation of rights and fundamental freedoms, such as the exception to the right to life provided for in Article 26(3) as noted above. In this respect, Article 24 provides that a right may be limited only to the extent that it is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose. Article 25 specifically enumerates the rights and fundamental freedoms that may not be limited, including the right to a fair trial, and the right to freedom from cruel, inhuman or degrading punishment. 2

3 Death Penalty in Kenya Under the Penal Code, there are currently five offences murder (s.204), treason (s.40 (3)), administering unlawful oath to commit capital offences (s.60), and robbery with violence (ss.296(2) and 297(2)) that attract the death penalty. The language in each of these provisions contains the mandatory wording shall be sentenced. Section 26(2) of the Penal Code provides that, unless otherwise expressly stated, a person liable to imprisonment for life or any other period may be sentenced to any shorter term. In other words, unless there is a clear mandatory minimum stipulated for an offence, such as the penalty for possession of a firearm in section 89(1) which provides for imprisonment for a term of not less than seven years [emphasis added], the sentencing judge or magistrate has discretion to prescribe a lesser penalty. The very notable exception to this grant of sentencing discretion is offences that are subject to the death penalty. The rules of statutory interpretation dictate that when the words in an instrument are clear and unambiguous, they are to be interpreted in their ordinary sense and according to the rules of grammar. When the words are not clear, the meaning may be gleaned from an examination of their context and circumstances in which they are used and the objective of the statute in which they are found. If necessary, one may further look to outside sources of information in order to determine the intent of the legislature in enacting the statute. 6 Section 26(2) is clear and unambiguous on its face, as it contains the words period and term that are used in their ordinary sense to describe a specific amount of time. Further, the doctrine of interpretation that the law is always speaking means that words are not used superfluously. This also means, conversely, that the absence or exclusion of words must also have meaning. Section 26(2) is clearly intended to exclude the death penalty, as the provision would be entirely unnecessary if every sentence, including the death penalty (i.e. death, life, or any other period), may be shortened. It is clear therefore that the death penalty is a mandatory minimum sentence that an adjudicator does not have any discretion to alter. In 2008 the Court of Appeal in Joseph Njuguna Mwaura & 2 others v Republic confirmed that it has no discretion to alter a mandatory death sentence, stating as follows: A look at all the provisions of the law that impose the death sentence shows that these are couched in mandatory terms, using the word shall. It is not for the Judiciary to usurp the mandate of Parliament and outlaw a sentence that has been put in place by Kenyans, or purport to impose another sentence that has not been provided in law. It has no jurisdiction to do so In our view, to say that there are other alternative sentences to the mandatory imposition or application of the death 6 Republic v Lucas M. Maitha Chairman, Betting Control And Licensing Board & 4 others Ex -parte: Interactive Gaming and Lotteries Limited, High Court of Kenya at Nairobi, Miscellaneous Civil Application 370 of 2010 at para. 13; Republic v Council of Legal Education & another Ex-Parte Mount Kenya University [2016] eklr at para

4 sentence is a pedantic and preposterous interpretation of the spirit and the letter of the Penal Code 7 In a judgment delivered on 18 March 2011, the Court of Appeal in David Njoroge Macharia v Republic 8 held that section 204 is inconsistent with the letter and spirit of the Constitution which does not make the dealth penalty mandatory. In 2015 the High Court of Kenya in Joseph Kaberia Kahinga and Others v Hon. Attorney General 9 held that the death sentence is not a cruel, inhuman and degrading punishment, but did find that it amounts to a violation of an accused person s right to fair trial as provided under Article 50 (2) of the Constitution if the court does not receive and consider mitigating factors and other statutory and Policy pre-sentencing requirements. The Court held that it is not mandatory for the courts to pass a death sentence against persons charged with capital offences. 10 It is notable that the death penalty has not been carried out in Kenya since In 2016 the President commuted 2,747 death row cases the entire death row population at the time - to life imprisonment. 11 Life Imprisonment in Kenya As noted above, section 26 of the Penal Code sets parameters for a sentence of imprisonment, and specifically provides that in the absence of a mandatory sentence, a person liable to life imprisonment may be sentenced to any shorter term. The Penal Code does not however specify or clarify the meaning of life in respect of life imprisonment. Until the Supreme Court s decision in Muruatetu, life imprisonment in Kenya has been for an indeterminate period, i.e. the natural life of the convicted person. There are twenty-nine (29) offences in the Penal Code for which a convicted person is liable to imprisonment for life. 12 There are a further eight (8) offences in the Sexual Offences Act 13 that provide for a 7 Joseph Njuguna Mwaura & 2 others v Republic [2013] eklr, Criminal Appeal No 5 of 2008 [Mwaura] at 11 and [2011] eklr, Criminal Appeal No. 497 of [2016] eklr, Petition No. 618 of 2010 in the High Court of Kenya at Nairobi [Kahinga]. 10 Ibid. at 41 and Oluwatosin Popoola, Africa must move away from the death penalty (25 April 2017), online: Amnesty International < (accessed 18 January 2018). 12 Treason (42 and 43), treachery (43A), promoting war (44), inciting to mutiny (47), aiding prisoners of war to escape (50), unlawful oaths to commit capital offences (59), rioting after proclamation (83), preventing or obstructing proclamation (84), rioters demolishing buildings (85), rescue from lawful custody (122), manslaughter (205), attempt murder (220), attempt murder by convict (221), accessory after fact to murder (222), aiding suicide (225), killing unborn child (228), disabling to commit felony or misdemeanour (229), stupefying to commit felony or misdemeanour (230), acts intended to cause grievous harm or to prevent arrest (231), preventing escape from wreck (232), intentionally endangering safety of person travelling by railway (233), grievous harm (234), arson (332), malicious injuries to property (339), sabotage (343), forgery of wills etc (350), counterfeiting coin (365), and preparation for coining (366). 13 Cap. 62A. 4

5 maximum, and in some cases mandatory, sentence of imprisonment for life. 14 Numerous other statutes also contain offences for which a convicted person is or may be liable to imprisonment for life. 15 Domestic Sentencing Policy To address concerns regarding public misconceptions about sentencing and an undue reliance by the judiciary on custodial sentences, in or about June 2014 the Honourable Chief Justice Willy Mutunga (now retired) constituted a Judicial Taskforce on Sentencing to report on how to reduce unwarranted disparity, increase certainty and uniformity, and promote proportionality in sentencing. 16 The Taskforce conducted criminal justice sectorwide stakeholder consultations including public engagement, and the resulting Sentencing Policy Guidelines were launched in January The purpose of the Guidelines is to provide a coherent structure to the exercise of judicial discretion that, while a necessary tool that remains sacrosanct, nevertheless must be applied in accordance with the recognized principles of fairness, non-arbitrariness, clarity and certainty Rape (s.3), 10 years to life; attempted rape (s.4), 5 years to life; sexual assault (s.5), 10 years to life; defilement of child eleven years or less (s.8(2)), mandatory life; gang rape (s.10), fifteen years to life; incest by male person against female child (s.20(1)), mandatory life; Deliberate transmission of HIV or any other life threatening sexually transmitted disease (s.26(1)), 15 years to life; transmission (whether intention or not) of HIV in the course of committing any other sexual offence (s.26(9)), 15 years to life. 15 See, for eg., Kenya Defence Forces Act, 2012, s.59 (communication with enemy), s.61 (offences by service member or officer when in action if committed in cowardice ), s.62 (offences by a person in command when in action), s.63 (misconduct in action by others), s.64 (cowardice), s.66 (offences against morale), s.68 (Being captured through disobedience or neglect, and failure to rejoin Defence Forces), s.72 (mutiny), s.73 (Failure to suppress mutiny), s.74 (desertion), s.90 (causing fire). Note that many of these offences also potentially attract the death penalty in certain circumstances. See also Counter-Trafficking in Persons Act, 2010, s.3(5) and (6) (trafficking in persons for exploitation and financing, aiding or abetting trafficking in persons) if a second or subsequent conviction, s.4 (acts that promote child trafficking) if a second or subsequent offence, s.5 (promotion of trafficking in persons) if a second or subsequent offence, s.9 (trafficking that results in permanent or life-threatening bodily harm, or death), and s.10 (trafficking in persons for organized crime). See also Prevention of and Organised Crimes Act, 2010, s.4 (2) (organised criminal activities resulting in death) and s.5 (oathing to engage in organised criminal activity). See also Wildlife Conservation and Management Act, 2013 s.92 (offences relating to endangered and threatened species) and s.96 (offences relating to sport hunting). See also Prevention of Terrorism Act, 2012 s.4 (2) (commission of a terrorist act resulting in death) and s.12 (direction in the commission of a terrorist act). See also Narcotic Drugs and Psychotropic Substances (Control) Act, 1994 s.3 (2) (possession of narcotic drug or psychotropic substance, other than cannabis if for other than personal use) and s.4 (trafficking in narcotic drug or psychotropic substance). See also Merchant Shipping Act, 2009 s.370 (hijacking and destroying of ships) and s.371 (piracy and armed robbery). See also Protection of Aircraft Act, 1970 s.3 (hijacking). See also Firearms Act s.4a (unauthorized possession of specified firearms). See also International Crimes Act, 2008 s.6 (genocide, etc.) [Note: this offence may also attract the death penalty]. See also Geneva Conventions Act s.3 (grave breach of Convention involving wilful killing). See also Prohibition of Female Genital Mutilation Act s.19 (female genital mutilation causing death). Finally, see Prevention of Torture Act, 2016 s.5 (torture resulting in death). 16 Republic of Kenya, Judiciary, Sentencing Policy Guidelines (launched 25 January 2016) at 3 [Guidelines]. 17 Ibid. at

6 The Guidelines set out the following six principles that underlie the sentencing process: Proportionality meaning that a sentence must not be too severe or too lenient in relation to the seriousness of the offence and the responsibility of the offender. An assessment of proportionality takes into account the circumstances of the offence and the offender, and the actual impact of the offending behaviour on the victim(s); 2. Equality/uniformity/parity/consistency/impartiality meaning that the same sentence should be imposed on offenders who commit the same offence in similar circumstances; 3. Accountability/transparency in accordance with the Constitution and the rule of law, decisions regarding sentencing must be clearly reasoned based on established principles; 4. Inclusiveness sentencing decisions should take into account the submissions of both the offender and the victim(s); 5. respect for human rights and fundamental freedoms the sentencing process must be informed by and uphold the fundamental rights of both the offender and the victim(s); and 6. Adherence to domestic and international law with due regard to international and regional sentencing standards. The Guidelines clarify that the objectives of sentencing are retribution (i.e. punishment), deterrence (i.e. discouraging commission of offences), rehabilitation (i.e. reforming the offender into a law abiding citizen), restorative justice (i.e. addressing the needs of the offender, victim and community), community protection (i.e. public security) and denunciation (i.e. condemning antisocial behaviour). A sentencing judge must endeavour to satisfy all of these objectives in reaching a decision, which may necessarily require a balancing given their potential conflict with each other. 19 In the absence of a mandatory minimum sentence, a sentencing court is directed to consider a non-custodial sentence if such can meet the sentencing objectives, and in doing so must take into account the following factors: The seriousness of the offence a misdemeanour should not attract a custodial sentence unless there are objective aggravating circumstances that favour incarceration; 2. The offender s criminal history depending on the gravity of the offence, a first-time offender should be considered for a non-custodial sentence unless there are objective aggravating circumstances that favour incarceration; 18 Ibid. at Ibid. at Ibid. at

7 3. The offender s character offenders who are remorseful and are not likely to reoffend should not be subject to incarceration; 4. The offender s responsibilities vis-à-vis third parties where it is proven that the offender is the sole or main provider for dependents, particularly vulnerable persons, a non-custodial should be preferred so long as injustice does not result; 5. Community protection a custodial sentence should be imposed where there is evidence to suggest that a non-custodial sentence may pose a threat to the safety of one or more persons; and 6. child/youth offenders custodial sentences should be the last resort for children in conflict with the law, unless it is in the best interests of the child in all the circumstances. In practical terms, the Guidelines provide a procedure to be followed in determining an appropriate sentence in all the circumstances. The first step is to ascertain the sentence or sentencing range established by law. As noted above, if a mandatory sentence is directed, the court must determine whether it is a mandatory minimum that a court has no discretion to reduce, a mandatory maximum that a court has no discretion to raise, or a mandatory sentence that a court has no discretion to alter either way (ie. the death penalty). In accordance with Penal Code section 26(2), if no mandatory term is expressly stated, the sentencing court has discretion to reduce the prescribed term, and in accordance with the Guidelines, must consider whether the circumstances warrant imposing a non-custodial sentence. The Guidelines dictate that the starting point in exercising sentencing discretion is half of the maximum prescribed sentence. 21 With respect to a sentence of life imprisonment, which is an undefined term in the law, the Guidelines state that a court should nevertheless endeavour to impose a sentence in keeping with the spirit of these guidelines. 22 The second step is to determine the existence of mitigating circumstances that may warrant a reduction in sentence, such as any of the following: little or no harm/damage caused; significant provocation (including, in particular, gender-based violence); factors affecting the responsibility of the offender including age and mental capacity; the offender s role in the offence; whether it is a first or repeat/subsequent offence; and any remorseful, compensatory, reconciliatory and/or restorative behaviour by the offender prior to conviction, including pleading guilty and cooperating with law enforcement. 23 The third step is to determine the existence of any aggravating circumstances that may warrant imposing a stricter penalty, such as any of the following: premeditation and/or postoffence attempts to conceal or dispose of evidence; vulnerability of the victim, including targeting vulnerable groups or abusing a position of authority; serious physical or psychological effect on the victim(s); multiple victims and/or multiple perpetrators (eg. gang 21 Ibid. at Ibid. at Ibid. at

8 violence); use of a weapon (the more dangerous the weapon, the more aggravating the factor); flagrant use of violence, including repeated assaults, damage to property and/or degrading or demeaning behaviour; crimes motivated by ethnic, racial or gender bias; and crimes aimed at disrupting public service or national security. 24 If both mitigating and aggravating circumstances exist, the sentencing court must engage in a balancing exercise to determine if any of the factors outweigh the others. 25 The Guidelines confirm that sentencing is subject to the constitutional guarantee of a fair trial, and accordingly a sentencing court should consider all relevant information by requesting a presentence report as a matter of course. 26 In this respect it is important to note sections 323 and 329 of the Criminal Procedure Code 27 which dictate that a convicted person shall be given the opportunity to make submissions as to mitigating circumstances, and gives a sentencing court the discretion to receive any evidence it deems appropriate in order to impose an informed and proportionate sentence. 3. The Court s Judgment and Reasoning The Supreme Court of Kenya in Muruatetu confirmed that the death penalty per se is not unconstitutional, 28 however noted that the United Nations Commission on Human Rights has recommended the abolition of the death sentence as a mandatory sentence. 29 With respect therefore to the mandatory nature of the death penalty in section 204 of the Penal Code, the Court held that the imposition of a sentence of death without considering mitigating circumstances violates the right to a fair trial guaranteed in Article 50(2) of the COK 2010, which right may not be limited pursuant to Article Specifically, the Court stated that [s]ection 204 of the Penal Code deprives the Court of the use of judicial discretion in a matter of life and death. Such law can only be regarded as harsh, unjust and unfair. The mandatory nature deprives the Courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in appropriate cases. Where a court listens to mitigating circumstances but has, nonetheless, to impose a set sentence, the sentence imposed fails to conform to the tenets of fair trial that accrue to accused persons under Articles 25 of the Constitution; an absolute right. Accordingly, the Court held that due process requires a sentencing court to consider whether the death sentence is appropriate in light of the circumstances of the offence and 24 Ibid. at Ibid. at Ibid. at 45 and Cap Supra note 1 at para Ibid. at para Ibid. at para

9 the offender. 31 Noting that Kenya has recently issued the Guidelines on sentencing that confirms the mandatory nature of the death penalty, the Court also held that the relevant sections of the policy are no longer applicable, and instead set out new guidelines with respect to mitigating factors that a sentencing court must take into consideration in determining whether to impose a death sentence or some term of imprisonment upon conviction for murder. Reiterating that judicial discretion is key to achieve a fair trial, the Court clarified that the following criteria are advisory and intended to promote transparency and consistency in sentencing: (a) Age of the offender; (b) Being a first offender; (c) Whether the offender pleaded guilty; (d) Character and record of the offender; (e) Commission of the offence in response to gender-based violence; (f) Remorsefulness of the offender; (g) The possibility of reform and social re-adaptation of the offender; (h) Any other factor that the Court considers relevant. 32 The Court noted that the UN Commission on Human Rights urges States that maintain the death penalty not to impose it except for the most serious crimes that are violent in nature, specifically intentional crimes with lethal or extremely grave consequences. 33 As noted above, the Court then ordered inter alia the Attorney General to give effect to its judgment with utmost urgency by amending the relevant law and setting up a framework for resentencing convicted persons who are currently subject to the death penalty. 34 With respect to sentences of life imprisonment, the Court was asked to consider whether a life sentence should continue to be indefinite, or whether it should fix a certain number of years to constitute life imprisonment. In this respect, and notably, the Attorney General took the position that a life sentence ought not to be equated to the natural life of the convicted person and a judge should be accorded the opportunity to set a date when parole could be considered. 35 The Court reviewed comparative legislation and case law and noted that in Kenya and internationally, the purpose of sentencing is not only retribution and deterrence but also to promote rehabilitation of the offender. 36 While acknowledging that a life sentence could be indeterminate in appropriate cases, the Court held that it could also mean a certain minimum or maximum time to be set by the relevant judicial officer along established parameters of criminal responsibility, retribution, rehabilitation and recidivism. 37 Accordingly, the Court likewise ordered inter alia the Attorney General to give 31 Ibid. at para Ibid. at paras. 71 and Ibid. at para Ibid. at para Ibid. at para Ibid. at paras. 91 and Ibid. at para

10 effect to its judgment by amending the law to include parameters of what ought to constitute life imprisonment International and Regional Law and Comparative Practices International Law While Article 3 of the Universal Declaration on Human Rights 39 and Article 6 of the International Covenant on Civil and Political Rights 40 each protect against arbitrary deprivation of the inherent right to life, Article 6(2) of the ICCPR provides that the sentence of death may be imposed for the most serious crimes pursuant to a final judgment rendered by a competent court. The death penalty may not be imposed on persons under eighteen years of age, or pregnant women. 41 Kenya ratified the ICCPR in 1972, and it therefore forms part of the law of Kenya in accordance with Article 2(6) of the COK The Second Optional Protocol to the International Covenant on Civil and Political Rights was adopted by the UN General Assembly in 1989 and provides for abolition of the death penalty, however it has not been ratified by Kenya. The goal of progressive restriction of capital offences has been reiterated in various resolutions by the General Assembly, the UN Commission on Human Rights, and the European Union. 42 On 19 November 2012 the UN voted once again in favour of a moratorium on the death penalty, however like all General Assembly resolutions, it is not binding on any state. The Rome Statute of the International Criminal Court 43 to which Kenya is a signatory does not provide for the death penalty for the international crimes of genocide, crimes against humanity or war crimes. In 1990 the United Nations General Assembly adopted the United Nations Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules) 44 which provide that states must develop non-custodial measures with the aim of reducing the use of imprisonment, taking into account human rights, social justice and rehabilitation of offenders. 45 A range of noncustodial options should be available at all stages of the criminal justice process, from pretrial to post-sentencing, in order to provide greater flexibility consistent with the nature and gravity of the offence, with the personality and background of the offender and with the protection of society. 46 In making a decision on sentencing after a conviction, a judicial authority should consider the rehabilitative needs of the offender, the protection of society, 38 Ibid. at para G.A. Res. 217 A (III), UN GAOR, 3d Sess., Supp. No. 13, UN Doc. A/810 (1948) G.A. Res. 2200A (XXI) of 16 December 1966 (entry into force 23 March 1976) [ICCPR]. 41 Ibid. at Article 6(5). 42 Eric Prokosch, Human Rights v. The Death Penalty: Abolition and Restriction in Law and Practice, Amnesty International (December 1998), online: < at July 1998, UN Doc. A/CONF.183/9 (entered into force 1 July 2002). 44 GA Res. 45/110, UN Doc. A/RES/45/110 (14 December 1990), online: < 45 Ibid. at para Ibid. at para See also

11 and the interests of the victim who should be consulted. 47 To assist re-integration of offenders into society, the Rules state that release from incarceration to a non-custodial program such as halfway houses, remission (i.e. early release), parole or pardon, must be considered at the earliest possible stage. 48 Supervision and conditions imposed in connection with a non-custodial program should be aimed at assisting the offender at reintegration in a way that reduces recidivism, and should be coupled with such psychological, social and material assistance as may be needed to achieve this goal. 49 In all circumstances the judicial authority must take into account the needs of society in addition to the needs and rights of both the offender and the victim(s). 50 Regional Law The African Charter on Human and Peoples Rights 51 does not speak definitively to this issue, however in 1999 the African Commission on Human and Peoples Rights adopted a resolution urging State Parties to the Charter to limit the imposition of the death penalty to only the most serious crimes, and to consider abolishing the death penalty. In November 2008 the African Commission adopted a further Resolution on a moratorium on the death penalty, 52 and in 2003 it proclaimed Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, 53 urging African states to incorporate them into domestic legislation and ensure that they are promoted and protected. With respect to sentencing and punishment the guidelines state that the essential purpose of custodial sentences must be the reform and social re-adaptation of the convicted person. 54 With respect to the death penalty in particular, the guidelines reiterate that it may only be imposed for the most serious crimes and urge states to reflect on the possibility of abolishing capital punishment. 55 Further, persons who are subject to the death penalty must have the right to seek clemency, amnesty, pardon or commutation of sentence. 56 Commutation in this context means substitution of a lesser sentence, for example life imprisonment. The African Commission on Human and Peoples Rights in its 2012 Study On The Question Of The Death Penalty In Africa ultimately concluded that abolition of the death penalty is 47 Ibid. at para Ibid. at paras Ibid. at paras. 10.1, 10.4, 12.2 and Ibid. at para Adopted 27 June 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982) (entered into force 21 October 1986), ratified by Kenya 23 January Study On The Question Of The Death Penalty In Africa, Adopted by The African Commission on Human and Peoples Rights at its 50th Ordinary Session (24 October-07 November 2011), online: < at 8, African Commission on Human and Peoples Rights, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003 online: < 54 Ibid. at section N (9) (a). 55 Ibid. at sections N (9) (b) and (d). 56 Ibid. at section N (10) (d). 11

12 necessary in accordance with inter alia the statements and resolutions of the UN. 57 The African Commission s General Comment No. 3 on the African Charter on Human and Peoples Rights: The Right to Life (Article 4) 58 adopted in November 2015 sets out the Commission s perspective on this foundational human right. The Comment states that statutory limitations on the right to life should be interpreted narrowly, and should be continuously reviewed in accordance with international standards. 59 The Comment notes that international law requires abolition of the death penalty as a means of realizing the right to life and the right to be free from torture and cruel, inhuman or degrading treatment or punishment, and directs States Parties with moratoria on the death penalty to take steps towards formally abolishing it. 60 Most clearly relevant to the issue in this opinion is the following comment: In those States which have not yet abolished the death penalty it is vital that it is used for only the most serious crimes understood to be crimes involving intentional killing. if the particular proceedings in which the penalty is imposed have not stringently met the highest standards of fairness, then the subsequent application of the death penalty will be considered a violation of the right to life. In no circumstances shall the imposition of the death penalty be mandatory for an offence. [Emphasis added] 61 In terms of the highest standards of fairness, the Comment warns that imposing the death penalty after a trial that is not procedurally or substantively fair is an arbitrary and unlawful deprivation of life, and in this respect arbitrariness should be interpreted with reference to considerations such as appropriateness, justice, predictability, reasonableness, necessity and proportionality. 62 Finally, the Comment notes that the vast majority of African states have abolished or ceased carrying out the death penalty. 63 As at the end of 2017, the following nineteen (19) African countries have abolished the death penalty completely: Angola (1992), Benin (2016), Burundi (2009), Cape Verde (1981), Congo (2015), Côte d'ivoire (2000), Djibouti (1995), Gabon (2010), Guinea-Bissau (1993), Madagascar (2015), Mauritius (1995), Mozambique (1990), Namibia (1990), Rwanda (2007), São Tomé and Príncipe (1990), Senegal (2004), Seychelles (1993), South Africa (1995) and Togo (2009) Supra note 49 at 44 and Adopted by The African Commission on Human and Peoples Rights at its 57th Ordinary Session (November 2015), online: < [Comment] at 7 and Ibid. at 8 and Ibid. at Ibid. at Ibid. at Ibid. at Wikipedia, Capital Punishment by Country, online: < (accessed 18 January 2018). 12

13 Comparative Practices According to Amnesty International, as of 8 November 2017, 105 countries have abolished the death penalty for all crimes, 8 countries have abolished the death penalty for ordinary crimes, and a further 29 countries (including Kenya) have abolished it in practice. 65 Chad abolished the death penalty in 2014 but restored it in 2015 for the offence of terrorism. Guinea abolished the death penalty in 2016 for all crimes except exceptional crimes such as treason, and certain military crimes. 66 Algerian law provides the death penalty for inter alia treason and aggravated murder but is currently under a moratorium. Botswana, Burkina Faso, Cameroon, Central African Republic, Chad, Comoros, Egypt, Equatorial Guinea, Eritrea, Ethiopia, Gambia, Ghana, Kenya, Lesotho, Liberia, Libya, Malawi, Mali, Mauritania, Morocco, Niger, Nigeria, Sierra Leone, Somalia, Sudan, South Sudan, Swaziland, Tanzania, Tunisia, Uganda, Zimbabwe and Zambia likewise have the death penalty for inter alia murder or aggravated murder, 67 though half of these countries currently have a moratorium. 68 Zimbabwe s new Constitution promulgated in 2013, abolished mandatory death sentences and limited the death penalty to cases of murder committed in aggravating circumstances. 69 South Africa After the South African Constitutional Court ruled in 1995 that the death penalty is unconstitutional, the South African parliament enacted legislation to set aside all death sentences and substitute various levels of alternative punishments. 70 All prisoners on death row were entitled to reconsideration of their sentence by the same judge who imposed the death penalty (where possible), who was required to consider the evidence at trial and written submissions on behalf of the convicted person, and could receive oral arguments if necessary, and who would thereafter advise the President on the appropriate sentence to be substituted for the death sentence. For all new cases, the law was amended to provide for new minimum sentences for serious offences, with the caveat that a sentencing judge has discretion to impose a lesser sentence than that prescribed if the court is satisfied that substantial and compelling circumstances exist. Life imprisonment became the penalty prescribed for murder when it is: planned or 65 Amnesty International, Abolitionist and Retentionist Countries as of 8 November 2017 (10 November 2017), online: Amnesty International < (accessed 18 January 2018). 66 Supra note 39. See also ibid. at Supra note Supra note 62 at 2. Specifically, Algeria, Burkina Faso, Cameroon, Central African Republic, Eritrea, Ghana, Kenya, Liberia, Malawi, Mali, Mauritania, Niger, Sierra Leone, Swaziland, Tanzania, Tunisia and Zambia 69 The Standard, Zimbabwe: Death Penalty Violates Human Rights (25 September 2016), online: all Africa < 70 Criminal Law Amendment Act 105 of 1997, as amended by Criminal Law (Sentencing) Amendment Act,

14 premeditated; of a law enforcement officer or a witness in a criminal proceeding; the result of rape, or of robbery committed in aggravating circumstances; committed by a group of persons acting in furtherance of a common purpose or conspiracy; related to the prohibited practice of witchcraft; and for the purpose of or related to the unlawful removal of a body part of the victim. Life imprisonment is likewise the prescribed penalty for multiple rapes, gang rape, rape of a minor (under age 16) or a person who is vulnerable as a result of physical or mental disability, rape that results in grievous bodily harm, and rape committed by a person who is aware of being HIV positive or who has already been convicted of two or more rapes. Persons convicted of trafficking for sexual purposes, or any of the international criminal offences in the Rome Statute are also subject to life imprisonment. Finally, life imprisonment is prescribed for terrorism offences when the offence caused serious bodily harm or death, caused serious risk to health and safety of the public, or created a serious public emergency or general insurrection. Other offences are subject to lesser minimum terms of imprisonment that are graduated in severity depending on whether it is a first (15 years), second (20 years) or subsequent offence (25 years), being the following: murder when committed in circumstances other than the above; terrorism and related activities; robbery committed when there are aggravating circumstances or when it involves theft of a motor vehicle; trafficking of drugs over a certain value or by a law enforcement officer; dealing in or smuggling of firearms, ammunition or explosives or the possession of certain firearms or explosives; and certain crimes of corruption involving prescribed amounts and occurring in certain circumstances. A third category of offences are likewise subject to lesser minimum terms that are graduated in severity depending on whether it is a first (10 years), second (15 years) or subsequent (20 years) offence, as follows: rape or compelled rape in circumstances other than above; sexual exploitation of a child or a mentally disabled person; using a child or mentally disabled person in pornography; assault of a child under 16 years, with intent to cause grievous bodily harm; possession of more than one thousand rounds of ammunition; and trafficking of persons for sexual purposes when committed by a commercial carrier. Finally, any of the following offences are subject to imprisonment for 5 years (first offence), 7 years (second offence) or 10 years (subsequent offence), if facilitated by the possession or use of a firearm: treason; sedition; public violence; robbery, other than a robbery referred to above; kidnapping; an offence involving an assault, when a dangerous wound is inflicted with a firearm, other than those referred to above; breaking or entering any premises with intent to commit an offence; and escaping from lawful custody. Zimbabwe As noted above, the Constitution of Zimbabwe, 2013 protects the right to life in Part 2, Article 48. While this Article specifically provides for the death penalty to be imposed by final judgment of a competent court only on a [male] person convicted of murder committed in aggravating circumstances, certain conditions are attached to the imposition of this 14

15 sentence. Specifically, a court must have discretion whether or not to impose the penalty (ie. it may not be a mandatory sentence), it may not be imposed on persons under twentyone (21) or over seventy (70) years of age, and the convicted person must have the right to seek pardon or commutation by the President. Section 47 of the Criminal Law (Codification and Reform) Act 71 provides that intentional murder, or causing the death of someone by conduct taken while knowing that there is a real risk of death, is subject to the death penalty unless the convicted person was under eighteen (18) at the time of the offence or the court is convinced that there were extenuating circumstances, in which case the sentence is life imprisonment or any shorter period. Section 49 provides that culpable homicide, being causing the death of someone by some negligent act or omission, is subject to imprisonment for life or any shorter period, or a fine, or both. While section 344A of the Criminal Procedure and Evidence Act 72 clarifies that imprisonment for life means the natural life of the offender, section 344(1) provides that, in cases where there is no prescribed minimum sentence, where any person is liable by law to a sentence of imprisonment for life or for any period, he may be imprisoned for any shorter period. Section 337 confirms that the penalty for murder is a death sentence, unless the court is of the opinion that there are extenuating circumstances in which case the court may impose a life sentence, or any other sentence if the court considers such a sentence appropriate in all the circumstances of the case. Section 336 sets out the various types of punishments that may be imposed on a convicted person, including the death penalty for murder, life imprisonment, imprisonment for a determinate period, extended imprisonment, a fine, community service, corporal punishment (for male offenders under the age of 18), and recognizance with conditions. In addition, section 345 provides the option of periodical imprisonment of between ninety-six (96) and two thousand (2000) hours for certain offences. With respect to extended imprisonment, section 346 provides that a person convicted of inter alia murder, who has previously been convicted at least three times of any of a number of prescribed offences (including murder), and who was twenty-five (25) years old at the time of the last conviction, may be subject to an extension of imprisonment of between seven and fifteen years. A judge determining whether or not to impose extended imprisonment must consider all the circumstances of the case and the offender including in particular the seriousness of the offence, the need for public protection and the likelihood of rehabilitation. An offender who has previously been sentenced to extended imprisonment is liable to an extension of between fifteen and twenty years. Rwanda Rwanda has abolished the death penalty. The sentence for murder is life imprisonment, which the Penal Code of Rwanda 2012 states is imprisonment for the rest of a prisoner s 71 Chapter 9: Chapter 9:07. 15

16 natural life. Article 39 provides for two types of life imprisonment, being standard life imprisonment and life imprisonment with special provisions. Life imprisonment with special provisions means that the convicted person is not entitled to any mercy, conditional release or rehabilitation until the person has served a minimum of twenty years in prison. Despite these restrictions, article 110 provides that criminal liability shall be mitigated, aggravated or exempted when mitigating, aggravating or justifying circumstances are linked to the offence or to the offender. The acceptance of such circumstances shall result in reducing, increasing or exempting the convict from the penalty which was provided. In this respect, article 78 provides for the possibility of reduction of a life sentence or life imprisonment with conditions at the time of sentencing, if the sentencing judge is satisfied that there are mitigating circumstances, in which case the judge may impose a sentence of not less than ten years. While a judge has discretion to decide what may constitute a mitigating circumstance, article 77 lists several that may result in the reduction of a penalty, including pleading guilty, seeking forgiveness from the victim and expressing remorse, repairing the damage caused, or for offences that have minor consequences. Similarly, articles 73 to 75 provide for reduction of a sentence in the case of provocation, which for life imprisonment (with or without special provisions) can reduce the penalty to between two and five years. Article 71 provides that the factors to be taken into consideration by a judge when determining a penalty are the gravity of the offence, the circumstances surrounding the commission of the offence, and the offender s individual circumstances including motives, history and background. Article 35 of the Law Nº 30/2013 of 24/5/2013 Relating To The Code Of Criminal Procedure clarifies that a guilty plea triggers a sentence reduction by half, though this is permissive (within the discretion of the sentencing judge) and not mandatory. With respect to life imprisonment, a guilty plea may reduce the sentence to twenty (20) years. Law Nº 30/2013 also provides for both parole and rehabilitation. Article 245 sets out the conditions in respect of which release on parole may be granted, being if the offender demonstrates good behaviour and seriously pledges to social rehabilitation, or if the offender suffers from a serious and incurable disease, and if the offender has served a specified portion of their sentence. In respect of the third condition, Article 246 provides that the minimum period of sentence that must be served before an offender serving a life sentence may be released on parole is twenty (20) years. 73 The procedure for granting parole requires the offender to make an application to the Minister for justice, who consults with the public prosecutor and the prison director before granting the application. Once granted, it is not subject to appeal, though it may be revoked by the public prosecutor if the offender re-offends or otherwise shows gross misconduct or breaches conditions of the parole order (Articles 247 and 248). If an offender s parole is not revoked for the entire time remaining in the sentence, then the offender thereafter enjoys full freedom (Article 250). 73 An offender serving a sentence of less than five (5) years must serve one third of their sentence before being eligible for parole, and an offender serving a sentence of more than five (5) years must serve two thirds of their sentence before being eligible for parole. 16

17 An offender who has been released on parole, or after serving the full sentence, may apply in writing to the High Court for rehabilitation five years after the release date. Rehabilitation may be granted on advice of the public prosecutor if the person has continuously and effectively demonstrated good behaviour and has paid any outstanding fines, court fees or damages owing (Articles 259, 260, 261 and 264). 74 Rehabilitation extinguishes a penalty and any accompanying deprivation of rights, though it will be revoked if the person is subsequently convicted and sentenced for a further crime punishable by five (5) or more years imprisonment (Article 266). India Punishments that may be imposed under the Indian Penal Code 75 include the death penalty and life imprisonment (section 53), and the prescribed punishment for murder is either death or imprisonment for life (section 301.1). Section 45 clarifies that life denotes the life of a human being, though section 56.2 provides that life imprisonment may be equated to twenty (20) years for the purposes of calculating a fraction of such term. Section 54 provides that the death penalty may be commuted by the government for any other sentence, and section 55 provides that life imprisonment may be commuted by the government for a term not exceeding fourteen years. The Indian Code of Criminal Procedure, sets out conditions in respect of imposing a death sentence. Sections 366 to 369 provide that a death sentence issued by a lower court that has not been appealed, or has been unsuccessfully appealed, must be confirmed by the High Court, which has the power to conduct a detailed inquiry into the conviction including receiving further evidence. After such inquiry the High Court may confirm the conviction, annul the conviction and convict the person of another offence, order a new charge and trial, acquit, confirm the sentence or pass any other sentence provided for by law. A confirmation order must be signed by at least two judges. Section 432 gives the government power to suspend or remit part or all of a sentence upon application, and upon consideration of the sentencing judge s opinion and supporting reasons in regard to whether or not the application ought to be granted. Sections 433 echoes section 55 of the Penal Code, supra with respect to commutation of a life sentence to a term not exceeding fourteen years, though the Code of Criminal Procedure, 1973 adds to this, or for fine. Section 433A goes farther however, to prescribe a mandatory minimum of fourteen years that must be served by persons convicted of a crime for which the death penalty is one of the sentencing options, even though the person is sentenced to imprisonment for life, and for a person whose death sentence has been commuted to imprisonment for life. 74 Through relief from these debts may be granted to an impecunious offender, see Article Act No. 45 of Act No. 2 of