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Kenya: Reprieve UK Welcomes Kenya’s Supreme Court Ruling on Re-Sentencing in Death Penalty

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NAIROBI, Kenya Jul8 8 -A charity based in the UK that uses strategic interventions to among others; end the use of the death penalty globally has welcomed Monday’s judgment of the Supreme Court in Kenya on re-sentencing.

Winy Syombua and Shirly Amayo, both fellows of Reprieve UK, said the ruling is a reprieve for many condemned convicts on the death penalty because they will be able to withdraw their appeal and seek resentencing before their appeals can proceed.

Syombua and Amayo have been able to gather jurisprudence that is consistent with the Monday ruling by the Supreme Court while leading a project on resentencing in Kenya.

Over the last few years, Reprieve has been supporting efforts towards ending the death penalty in Africa, most recently working on a re-sentencing project in Malawi.

Reacting to the Supreme Court ruling in Kenya on the famous Muruatetu case, they said, “Some of the challenges that we have seen for instance in some courts when a person is done with the appeal and then file for resentencing, some courts were denying and saying that they do not have jurisdiction but now in this ruling, we’ve been told that you can actually withdraw the appeal first and then go ahead with resentencing and then you can proceed with the appeal, so that challenge has been mitigated with this judgement.”

The judges ruled that the decision in the Muruatetu case did not outlaw the death penalty, which is still applicable as a discretionary maximum punishment.

The judges, however, reiterated that its decision in the case did not invalidate mandatory sentences or minimum sentences in the Penal Code, the Sexual Offences Act or any other statute.

“It should be apparent from the foregoing that Muruatetu cannot be the authority for stating that all provisions of the law prescribing mandatory or minimum sentences are inconsistent with the Constitution,” the orders read by Chief Justice Martha Koome directed.

The seven-judge bench comprising CJ Koome, Deputy CJ Philomena Mwilu, Mohammed Ibrahim, Smokin Wanjala, Njoki Ndung’u, Isaac Lenaola and William Ouko asserted that the decision of Muruatetu only applied to sentences of murder under Section 203 and 204 of the Penal Code.

“Judges in some courts, we have gone to certain courts where judges have told us that they will not use resentencing in their courts for whatever reason because they still think that the penal code should be followed as deemed and the law is the law so the penal code does set out a sentence for the death penalty so that will always happen and so they will not revise any ruling or rather any sentence on death penalty because it exists in the statute but now the ruling today does give clarity,” Syombua said.

Reprieve launched the Kenya Resentencing Project over 18 months ago to support all individuals eligible for resentencing in Kenya following the success of the Malawi re-sentencing project, and legal reforms.

On Monday, the Supreme Court ruled that the Judiciary Sentencing Policy Guidelines should be revised in tandem with the new jurisprudence enunciated in Muruatetu.

“All offenders who have been subject to the mandatory death penalty and desire to be heard on sentence will be entitled to re-sentencing hearing,” the apex court said.

The Supreme Court initially delivered a ruling in the case of Francis Karioko Muruatetu & Another -vs- the Republic & Others on December 14, 2017 in which it made a finding that the mandatory nature of the death sentence as provided for under Section 204 of the Penal Code, with respect to murder cases, was unconstitutional.

The court directed the Attorney General, the Director of Public Prosecutions and other relevant agencies to develop a framework for dealing with the re-sentencing hearings of similar cases within 12 months of the Supreme Court’s decision.

Before the Taskforce to implement the decision could finalise its work for consideration by the Supreme Court, courts below embarked on the interpretation of the Supreme Court’s decision leading to inconsistency, confusion, and lack of uniformity in the country’s sentencing practice.

Some of the resultant approaches adopted by courts included adoption of the judicial approach that all provisions of the law prescribing mandatory or minimum sentences are inconsistent with the Constitution.

Appellants whose sentences were confirmed by the High Court and the Court of Appeal have also returned to magistrates’ courts, where, without reference to the decisions of the two superior courts, have had those sentences revised.

The magistrate’s courts have in some instances, entertained applications for re-sentencing in murder cases, without jurisdiction.

Some appellants whose appeals under various statutes prescribing mandatory or minimum sentences, that are pending in the High Court or Court of Appeal, have also had their sentences revised by the magistrate’s courts without disclosing the fact that pending appeals exist in Superior Courts.