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4,000 Kenyan Death Sentences Commuted to Life

by Matt Clarke

On August 3, 2009, Kenyan President Mwai Kibaki announced that he had commuted the death sentences of all 4,000 prisoners on Kenya’s death row to life in prison. Explaining his rationale for this action, Kibaki said an “extended stay” on death row while awaiting execution caused “undue mental anguish and suffering, psychological trauma and anxiety.” Kenya has not carried out an execution since 1987.

Kibaki insisted that the mass commutation did not mean that Kenya’s judges would no longer be issuing death sentences. To the contrary, under Kenyan law capital punishment is required for murder, armed robbery and treason. One of the criticisms of the mandatory sentencing law is that a man convicted of stealing a chicken while armed with a stick would receive a death sentence.

Prisoners’ rights activists and experts on Kenyan prisons noted that the actual effect of Kibaki’s commutation might be more practical: it may help keep prisoners from being unruly and will allow the government to put them to work, with the added bonus of quelling criticism by international death penalty opponents. According to a presidential press release, exempting death row prisoners from the otherwise-mandatory work requirement in Kenyan prisons had led to “idleness and subsequent negative impact on prison discipline as recently witnessed in some facilities.” That “negative impact” likely referred to the killing of two Kenyan prison wardens by death-sentenced prisoners earlier this year.

One would expect that lengthy delays before executions and Kibaki’s mass commutation would thrill death penalty abolitionists. However, some human rights groups have observed that like former Kenyan President Daniel Moi, President Kibaki has merely moved the death sentences from the back end of the judicial process to the front end. In February 2009, United Nations Envoy Phillip Alston found a “systematic, widespread and carefully-planned strategy” of extrajudicial killings by Kenyan police forces that was almost certainly sanctioned by top government officials.

“We’re living in a situation of massively heightened criminality and insecurity and we’re also living in situation where, due to failures in the criminal justice system, security services have resorted to extrajudicial killings as [a] way to manage rising crime,” said Muthoni Wanyeki, director of the Kenya Human Rights Commission. “We might not have legal executions taking place, but we certainly have illegal executions taking place.”

President Kibaki has refused to respond to criticism about extrajudicial killings by police officers, and was accused of making “woolly statements that amount to shoot-to-kill orders.” As a result, hundreds of Kenyans suspected of committing crimes have been shot by police, resulting in de facto executions in the streets rather than on death row.

There is hope for a repeal of the death penalty during revisions to Kenya’s national constitution, which is currently under review. President Kibaki has called for the government to evaluate whether the existence of the death penalty is effective in deterring crimes. This seems unlikely. The crime rate in Kenya has skyrocketed, with robbery and carjackings common in Nairobi even when 4,000 condemned prisoners sat on death row, before Kibaki commuted their sentences.

According to Amnesty International, over 60 percent of all African nations have either abolished or no longer use capital punishment. South Africa’s Constitutional Court ruled on June 6, 1995 that that country’s death penalty was unconstitutional. [See: PLN, Oct. 1995, p.9].


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