A new study offers new possibilities for Kenya’s 656 death row prisoners, prison reform and Kenya’s international credentials as a nation founded on principles of justice and human rights. The latest research builds on last year’s report that demonstrates that public will is sharply moving in favour of abolishing the death penalty.
While hanging for capital offences remains on our statutes, nobody has been executed since 1987. In 2009, Kenya’s third President Mwai Kibaki powerfully declared that the mental anguish of languishing on death row was inhumane treatment and proceeded to commute the death sentences of 4,000 prisoners to life imprisonment. At the time, his action made international history for the largest number of Presidential pardons ever. Seven years later, President Uhuru Kenyatta commuted the sentences of 2,747 death row inmates.
Incredibly, fourteen years later, the pain and futility of retaining the death penalty is described by prisoners in the report Living with a Death Sentence: Prisoners Experiences of Crime, Punishment and Death Row. The report, jointly published by The Kenya National Commission on Human Rights, Oxford University and Death Penalty Project, empirically demonstrates that the death penalty is a completely ineffective deterrent or rehabilitative tool for serious criminals.
Ninety per cent of prisoners on death row were under-educated and unemployed or informal hustling when they were convicted. One in two were addicted to alcohol and other substances. Despite these challenges, 89 per cent were supporting families and other dependents. Contrary to the stereotype that most death row prisoners are hardened criminals, 90 per cent of them are first time offenders.
Less than 3 out of 10 interviewed for the study felt that the death penalty was a deterrent at the time. One in two had no access to an advocate and experienced police abuse and intimidation at the time of their arrest. While on death row, their social relationships and networks had deteriorated and most felt isolated from family and communities. More positively, 73 per cent had been able to study and 84 per cent feel that prison had rehabilitated them.
The study is highly significant in 2023. A deep economic recession threatens to drive most Kenyans into economic distress, alcohol dependency and relationship upheavals. Predictably we are set for higher levels of poor mental health, sense of financial desperation, gender based and intimate partner violence and suicide. All these factors drive violent crimes against other people or their property and ultimately, the sentencing of human beings to death.
Last year’s KNCHR opinion poll demonstrated that 40 per cent of Kenyans (22.4 million) are abolitionist and 10 per cent (5.6 million) are no longer convinced the death penalty should be retained. Looked at this differently in the context of last year’s General Election, the equivalent of the total number of registered voters now wants the death penalty struck from our laws. Almost double of the voters who voted from the two top presidential candidates have given their blessing.
Last year, the Kenyan Judiciary sentenced 79 people (1 woman) to death. There are 656 (22 women) people currently on death row. Twelve sentences were commuted, 20 exonerated but none were pardoned. Meanwhile across the world, countries like Papua New Guinea, The Central African Republic, Equatorial Guinea, and Zambia abolished the death penalty for all crimes. If no civilised society executes broken men and women as abolitionist Bryan Stevenson has argued, public will has shifted and there is no evidence that the death penalty deters or rehabilitates serious criminals, why do we retain this 130-year-old statute?
Our attention needs to turn to the Office of the Attorney General to act and position the fifth Presidency as the one that brought Kenya into the league of 122 nations that have abolished the death penalty. Prosecutors and judicial officers and parliamentarians must also act now. This year, Ghana and Zimbabwe are reportedly close to joining 25 other abolitionist African Union Member States.
Kenya must join them before World Death Penalty Day on 10 October.
The author is thankful to the National Prisons Service for sharing the prisoners on death row data and their efforts towards rights based prison management approaches.
This opinion was published in the weekly Saturday Standard column 28 January 2023 #StandardSettingKE