DEATH PENALTY: De Facto Moratorium Leaves 4,000 in Limbo

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Joyce Mulama

NAIROBI, Aug 7 2006 (IPS) - It’s a penalty that has been put on ice for nearly two decades in Kenya. Nonetheless, capital punishment remains an option for judges handing down sentences in the East African country, high-level support for its abolition notwithstanding.

Though it has been 19 years since anyone has been executed, a human rights group believes some 4,000 souls linger in prison with a death sentence hanging over their heads. The de facto cessation of executions does not mean that life on death row becomes easier.

“When we speak to them (death row prisoners), some say they prefer to be executed at once rather than remain on death row indefinitely. They say this is psychological torture,” observed Moses Chepkoy, a public relations officer at the prisons department.

Sentiment is turning against capital punishment in certain quarters. Former justice and constitutional affairs minister Kiraitu Murungi has condemned the death penalty, as has Moody Awori – the vice president and minister of home affairs. Awori has also talked about introducing a bill in parliament to abolish capital punishment in Kenya.

Although the government has effectively halted executions, prisoners continue to be sentenced to death. Capital punishment can be applied to cases involving murder and violent robbery.

IPS was not able to obtain official figures for the number of people on death row; however, Samwel Mohochi, acting executive director of the Independent Medico-Legal Unit (IMLU), estimated the number to be around 4,000. This amounts to nearly ten percent of the total number of prisoners, which currently stands at 50,000.

The IMLU is a non-governmental organisation based in the Kenyan capital, Nairobi, that documents torture, and helps rehabilitate torture victims. It has also done extensive research on the country’s prisons.

In the event that the legislation to outlaw capital punishment is passed, Kenya would join several other countries across the continent that have consigned the death penalty to history. According to rights watchdog Amnesty International, 12 of the 53 states in Africa have abolished capital punishment.

“A Constitution that prohibits the death penalty and links the abolition of the death penalty to human rights, in particular to the rights to life and physical and mental integrity…is in line with international human rights standards,” said Amnesty in a 2005 statement.

Indications are that there is some way to go before these arguments are accepted across the board, however.

“Kenyans believe that a wrongdoer must be harshly punished,” noted Chepkoy.

For those who fear that the loss of the death penalty would undermine crime control efforts, the Kenya National Commission on Human Rights (KNCHR) points to a 1998 United Nations study – updated in 2002 – that found no relationship between the existence of the death penalty and homicide rates.

The KNCHR, a government-appointed body, argues that the key to crime deterrence lies instead in the increased likelihood of crimes being detected – and the arrest and conviction of those responsible for them.

In addition, the death penalty “perpetuates a cycle of violence and promotes a sense of vengeance in the society,” the commission noted in a recent position paper detailing why capital punishment should be abolished in Kenya.

“To support the death penalty is to teach that violence and killing is an acceptable way of dealing with serious crimes,” it added.

Extensive and vigorous debate on the future of capital punishment in the country is essential for progress, Chepkoy said. “A lot of awareness creation on this matter is necessary,” he told IPS.

For the moment, however, the only hope for death row prisoners resides in the president.

Mwai Kibaki has the authority to issue pardons to those who have received the death penalty – something he exercised soon after coming to power in December 2002, on behalf of 28 prisoners on death row. Those pardoned had served between 15 and 20 years in jail, after being sentenced to hang.

Their release was commended by rights activists, many of whom wish to see life imprisonment instituted as the maximum sentence for the most serious of crimes.

Interestingly, the last execution was carried when the plotters of a 1982 coup – Hezekiah Ochuka and Pancreas Otenyo Okumu – were put to death. They had been found guilty of attempting to overthrow a former president, Daniel arap Moi.