With the support of the Death Penalty Project, the International Commission of Jurists and the Kenyan National Human Rights Commission, Wilson Mwangi and Francis Karioko filed a petition with the Supreme Court challenging the constitutionality of the mandatory death penalty for crimes such as murder, treason and armed robbery. In their petition, both defendants argued that the mandatory death penalty violated their right to a fair trial and constituted an arbitrary deprivation of life. In his ruling, Supreme Court Justice Njoki Ndungu concluded that the mandatory death penalty is “incompatible” with the Kenyan Constitution: “The mandatory nature of death sentences under Article 204 of the Penal Code is declared unconstitutional.” Courts still hand down death sentences. At the end of 2021, 601 death row inmates were on death row and 14 death sentences had been handed down that year. This is not the first time a Kenyan court has ruled on the legality of the mandatory death penalty. In 2010, the Mombasa Court of Appeal ruled that the mandatory death penalty violated the right to life and the right to protection from arbitrariness and inhuman treatment. Despite this verdict, the Penal Code upheld mandatory death sentences. In 2013, the Nairobi Court of Appeal did not uphold the Mombasa precedent. Since it was for the legislature to decide whether to retain the mandatory death penalty, the Nairobi Court of Appeal applied the mandatory death penalty for armed robbery. As a result, the recent Supreme Court decision ended the conflict and finally ruled on the unconstitutionality of the mandatory death penalty. Kenya is a de facto abolitionist country that has not carried out any executions since 1987.

The country sentenced at least 12 people to death but carried out no executions in 2018. While the new guidelines are respected, the future of the death penalty in Kenya remains marked by legislative and legal uncertainties. Although Kenya is a de facto abolitionist country where no executions have been recorded for more than 30 years, there are still significant obstacles on the road to the complete abolition of the death penalty. Kenya`s Supreme Court has declared mandatory death sentences imposed in the country unconstitutional. In a judgment of 14. In December 2017, which could affect 7,000 prisoners sentenced to death, the Supreme Court struck down Article 204 of Kenya`s Penal Code, which required judges to hand down death sentences for murder or armed robbery. The ruling resolves conflicting decisions in the country`s lower courts of appeal and grants new hearings to those currently on death row. Our research in Kenya and elsewhere has shown that, far from the strong public support adopted by retentionist governments, there is indeed little appetite for the death penalty.

We have also shown that when there is support, it decreases when the public has accurate information on the use of the death penalty; In particular, how unfair, dangerous, arbitrary and totally unnecessary it is to reduce serious crime. Recent guidelines suggest that the death penalty is still firmly entrenched in the country`s SJC. The abolition of mandatory murder sentences was a step in the right direction, but it remains a drop in the bucket because it is still enforced, albeit at its discretion. In addition, the retention of mandatory sentencing for the other three capital offences means that judges are still deprived of much-needed discretion to determine these offences. The excessive delay of the authorities referred to in paragraph 112(c) of the judgment in drawing up a framework for reconviction led the lower courts to apply the decision differently. By clarifying the inapplicability of its previous decision to other offences imposing mandatory or minimum sentences, SCOK dealt a severe blow to the previously announced hope of abolishing the death penalty (mandatory and discretionary). M. Kakah, Mandatory death sentence now unconstitutional in Kenya, Daily Nation, 14 December 2017; Kenya: Landmark death penalty sentence must lead to complete abolition of cruel punishment, Amnesty International, 14 December 2017; KENYA`S SUPREME COURT DECLARES MANDATORY DEATH PENALTY UNCONSTITUTIONAL, The Death Penalty Project, 14 December 2017; S. Kiplagat, What Supreme Court ruling on death sentence means, Daily News, 18 December 2017. The decision of the Supreme Court of Kenya illustrates a regional and global trend. According to the Cornell Center on the Death Penalty Worldwide, at least 18 countries have abolished the mandatory death penalty since 2000.

Because the mandatory death penalty violates the right to a fair trial and access to justice, Malawi`s Supreme Court overturned the mandatory death penalty as unconstitutional in 2007. Two years later, the Ugandan Supreme Court followed. However, she did not follow the same reasoning. In fact, Ugandan judges have declared the mandatory death penalty unconstitutional because it violates equal rights to protection and discriminates between incapable and incompetent defendants. Observers hope that this jurisprudential momentum will lead countries such as Botswana or Burkina Faso to abolish the mandatory death penalty, which can still be authorized. The result of the new guidelines is that the death penalty (both in its mandatory and discretionary orientation) is still inducted into the Kenyan SJC. After the 1982 coup attempt, Hezekiah Ochuka, Pancras Oteyo Okumu and two other masterminds of the coup were convicted of treason, sentenced to death and hanged in July 1987. These are the latest people executed in Kenya to date. [6] Recent research by the Death Penalty Project, the University of Oxford and Kenya`s National Human Rights Commission suggests that Kenyan opinion leaders are in favour of abolition and that public opinion is not an obstacle.

In addition to legal or legislative reforms, there should also be civil society engagement and community action at the local level to engage the public in action.