By KENYA LAW REPORT
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Petronella Mukaindo and Michael Murungi
Republic V John Kimita Mwaniki [2011] eKLR (www.kenyalaw.org)
High Court at Nakuru, Justice M.A. Emukule, June 10, 2011
“We now concede that notwithstanding the mandatory provisions of Section 204 of the Penal Code [which state that any person convicted of murder ‘shall’ be sentenced to death], a trial judge still retains the discretion not to impose the death penalty and instead impose such sentence as may be warranted by the circumstances and facts of the particular case. That is our position. The word “shall” in Section 204 should now be read as “may” – The Attorney General
The morality and legality of the death penalty has been the subject of academic and social debate.
While some individuals, religious organisations and human rights activists have called for its abolishment on grounds that it is an inhuman and degrading deprivation of the right to life, others have been of the view that it is the only sentence that is commensurate with the gravity of certain offences such as murder and violent robbery.
According to the latter group, the sentence’s retributive and deterrent qualities provide the justice that the victims of such offences expect.
While section 204 of the Penal Code provides that any person convicted of murder “shall” be sentenced to death, there has been a shift in judicial interpretations of the law.
At least since the decision of the Court of Appeal in Godfrey Ngotho Mutiso v Republic [2010] eKLR, there has been a change from automatically imposing a sentence of death once a person is convicted of murder to exercising discretion on whether to impose such a sentence depending on the circumstances of the case.
Most recently, a man who was found guilty of murdering three persons in an incident that characterised the ethnic violence that preceded the 2007 General Election, was sentenced to a 30-year jail term.
Based on the evidence presented to it, the High Court had found that John Mwaniki had been part of a mob which raided a homestead in Ngarua Location of Molo District on the night of November 27, 2007, and murdered Reuben Kipngeno, Shadrack Kipkoech and Rose Chemutai.
It did not matter that Mwaniki had been in a group of several people, the rest of whom were not before the court.
Section 21 of the Penal Code states: “When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purposes an offence is committed of such nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.”
In meting out the sentence, Justice Emukule was guided by the Court of Appeal’s decision in Godfrey Ngotho Mutiso v Republic.
According to the ruling in that case, despite the mandatory provisions of the Penal Code (that a person convicted of murder “shall” be sentenced to death), a trial judge still retains a discretion not to impose the death penalty and instead to impose such sentence as may be warranted by the circumstances and facts of the particular case.
The court can therefore consider the plea of mitigation presented by the accused or convicted person and all antecedents before deciding whether the death penalty is appropriate in a particular case.
Rather ironically, Mwaniki’s mitigation plea in this case was that his parents had been displaced in 2006 in a previous wave of “ethnic cleansing” and were living as internally displaced persons in a makeshift camp.
He also said that he was only 20 years old at the time of the events leading to his arrest and that he was remorseful, so he did not deserve a death sentence.
In the Mutiso case, the Court of Appeal had agreed with a concession tendered by the Director of Public Prosecutions on behalf of the Attorney-General that the word “shall” in Section 204 of the Penal Code should be read as “may”.
This would apply not only to the offence of murder but also to the other offences in the Code that carry a death penalty – treason, robbery with violence and attempted robbery with violence.
The appellant in that case had argued that the imposition of the mandatory death penalty for particular offences was neither authorised nor prohibited in the Constitution and that section 204 of the Penal Code which prescribed a mandatory death penalty was unconstitutional and ought to be declared a nullity.
The Court of Appeal had ruled that while the now repealed Constitution recognised the death penalty, it did not provide that when a conviction for murder was recorded, only the death sentence must be imposed.
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