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  • Beryl Aidi

Is the Death Penalty Ever Justified? Part 2

Social, legal and religious paradigms

The Supreme Court of Kenya


In part one of this discussion we looked at some individual stories of people who were handed death sentences and the irreparable damage of the death penalty in cases of wrongful conviction or even accidental murders. In this second part, we consider some of the legal, moral or even religious arguments that the death penalty leans on to see if these are really legs to stand on. The moral question of the death penalty is even more troubling when statistics seem to indicate reprehensible patterns where a significant number of those on death row are from certain demographics.

 

Disturbing Demographics and Statistics

Statistics held by various organizations that deal with the death penalty reveal some disturbing if not unsettling realities. Amnesty International’s records show that in 2022, there were at least 2,016 death sentences in 52 countries. Of these, 883 result in executions, is a staggering 53% increase up from 579 in 2021. In all, by the end of 2022, there were 28,282 people known to be under a sentence of death. But there is a disturbing insight into the demographics of the people who wind up on the death raw.


According to the Death Penalty Information Center, there have been 194 death row exonerations since 1973 in the United States. Of these 194 individuals, 105, or 54%, are black.


In some less democratic countries, the death penalty has been used as a method to silence those seen to be political dissents. For instance, in Iran, vague laws that provide for the death penalty in violation of international law.


According to Javaid Rehman, UN Special Rapporteur on the situation of human rights in the Islamic Republic of Iran,  the country’s Islamic Penal Code of 2013 provides for the death penalty for a wide range of offences in violation of international human rights law. Some of those vague criminal charges that carry the death penalty and are often used against political opponents or political protesters include the crimes of “waging war against God”,  “corruption on earth” and armed rebellion”.


A report by The Death Penalty Project shows that in Kenya there were over 600 prisoners on death row in 2022. Most are poorly educated and are from very low income bracket.


Judicial ambiguity

A big question is why a country like Kenya still holds on to the death penalty. Kenya is a de facto abolitionist of the death penalty having not carried out any execution since 1987 with many of the sentences being commuted to life. Former presidents Mwai Kibaki and Uhuru Kenyatta commuted some of the sentences to life (4,000 and 2,747 respectively).


The country’s judicial system however continues to uphold the death penalty as judges hand death sentences to convicts.  This practice raises concerns, protests and draws criticism from the civil society and a section of parliamentarians largely because it is deemed unconstitutional and falls below the international human rights standards.


On one hand, the Constitution of Kenya 2010 (CoK, 2010) changed the country’s constitutional framework through its Bill of Rights which guarantees among others, the right to life. This is in addition to adopting the international treaty instruments when it made provisions where international treaty instruments that Kenya is a signatory to became part of the country's legislation.


On the other hand, Kenya has not yet ratified the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR) which expressly prohibits the use of the death penalty as punishment and therefore has no obligation under the Convention to abolish the death penalty. In actuality, the Constitution still upholds the death penalty for some crimes. Article 26(3) stipulates that a person shall not be deprived of life intentionally, except to the extent authorized by written law. This is a claw back on the right to life.


In 2017, the Supreme Court of Kenya declared the mandatory death sentence unconstitutional and directed the Attorney General to set up a task force to review the mandatory death sentence as provided for in the country’s Penal Code. Previously criticisms of death sentences were met with arguments that the judges had no option as that was the provisions of  Sections 296 (2) and 297 (2) for robbery with violence and Section 204 for murder of the Penal Code.


In its report, the taskforce after research and collecting of public opinion, recommended scrapping of the death penalty and urged Parliament to take the bold but rational next step of leading Kenya into a more just and humane future by abolishing the death penalty entirely.


Article 21 (1) of CoK, 2010, states 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. It also provides in 21 (4) that the State shall enact and implement legislation to fulfil its international obligations in respect of human rights and fundamental freedoms.


These are very clear provisions in the Constitution of Kenya which was promulgated in 2010 and therefore should be given effect by enacting laws to operationalize them.


When a country is in such a situation of judicial ambiguity, what is stopping it from making matters clear and doing away with this repugnant form of punishment? There really is no justification to hold on to it.


Article 2 of the Constitution provides ways in which the country’s legal system can find a path toward abolishing the death penalty in that Article 2(4) expressly states that laws inconsistent to the Constitution are void to the extent of inconsistency. The Constitution also recognizes the general rules of international as part of the law of Kenya, Article 2 (4),  and finally, any treaty or convention ratified by Kenya shall form part of the law of Kenya, Article 2(6).


Therefore, even without ratifying the Second Optional Protocol of the ICCPR, Kenya has other ways to move forward with abolishing the death penalty for all crimes as this is within the Constitutional mandate of the Legislative arm of the government. In fact, the 13th Parliament, under the William Ruto administration has shown a propensity to pass laws by enacting a raft of bills since President Ruto came to power in September 2022. This matter should be on their agenda.


It is highly hoped that there will be a move soon to abolish the death penalty in the country for all crimes as signaled by the 2023 by the judiciary led by the Chief Justice Martha Koome when they proposed its abolition and given that the Supreme Court directed bodies concerned with legislation to pass laws to the effect of repealing of the Penal Code sections that provide for the death penalty.


Archaic and overtaken by time 

The death penalty is the ultimate form of punishment because of its finality once the sentence is carried out. Ancient societies including the Judeo-Christian and other major world religions have overt the years supported the death penalty. It was supposed to be on the basis of an equal punishment for an equal crime. In fact, in the Old Testament, the Bible talks of an eye for an eye, a tooth for a tooth. There were many instances where people were stoned to death for religious offenses that did not even result from the killing of a person.

 

However, in the New Testament, Jesus, who ended up paying the ultimate price for the sin of human beings through his death, taught a better way. He said that instead of an eye for an eye and a tooth for a tooth, one should turn the other cheek if someone is slapped on one cheek. What this teaching essentially signaled was that there was no need for taking someone’s life for whatever reason.  Under the new covenant, Jesus expected people to extend grace rather than exact revenge. In other words, the equivalency of the punishment to the crime did not add up. The death penalty is very archaic and overtaken by better ways even from the biblical times.

 

Furthermore, even in the Old Testament, the Bible says that revenge belongs to God and therefore people should not carry out vengeful acts like killing offenders but let God judge them. Yet many modern justice systems continued the practice way into the 21st century. Mahatma Gandhi also said that there is a better way to handle issues as an “eye for an eye only ends up making the whole world blind”.


Clearly, there are patterns of ideology and belief systems that have been overtaken by time as society moves away from degrading, inhuman and unjust laws toward a more just society. The death penalty fits in as one of those ideologies, beliefs and practices whose time have run out.

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