Matter: (1) a challenge to the death penalty in Kenya, and (2) the right to fair trial for the capital offences of robbery with violence and attempted robbery with violence.
Legal Expert Mr. Winluck Wahiu and National Lawyer Mr. Mbugua Mureithi
Case 152, Kenya 2
Kenyan penal law for the offences of robbery with violence and attempted robbery with violence does not give procedural protections for the right to fair trial in accordance with international standards in so far as both are capital offences.
The opinion is concerned with two issues.
First, whether under international law, the application of the death penalty is prohibited on the grounds that it violates the right to life, human dignity or constitutes inhuman degrading treatment. If so, what is the implication for Kenya? The interpretation of international standards in this regard is premised on treaty provisions under a number of human rights treaties, specifically, the International Convention on Civil and Political Rights, the African Charter for Human and Peoples’ Rights and the Convention Against Torture, Cruel or Inhuman or Degrading Treatment or Punishment.
Second, whether the Kenyan law conforms to prevailing international standards regarding the right to fair trial in the procedure and practice for prosecuting the offences of robbery with violence and attempted robbery with violence. If it does not, what is the implication for accused persons who face the death penalty as a mandatory sentence upon conviction for any of these offences?
According to the formulation of the application to support this case, there are a number of other important issues that could be considered in the constitutional challenge, but which the national lawyer has not raised in his pleadings. For instance, international standards regarding the interpretation of mandatory sentences, increasingly converge on the opinion that such sentences by their compulsory nature undermine judicial discretion, and therefore encroach judicial authority unconstitutionally, when the import of the doctrine of separation of powers is considered. This case could help develop this international convergence further.
Statement of the National Law:
James Kamau Maina, Simon Mwangi Kabura, Timothy Mwangi Njehu and Samson Njuguna Mbugua face a death penalty charge in Senior Principal Magistrates Court Criminal Case No. 1059 of 2002 in Kenya. The charges against each of the four arise out of Sections 296(2) and 297(2) of the Penal Code of Kenya.
Section 296 of the Penal Code of Kenya provides as follows:
(1) Any person who commits the felony of robbery is liable to imprisonment for fourteen years with corporal punishment not exceeding twenty-eight strokes.
(2) If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.
Section 297 of the Penal Code of Kenya provides as follows:
(1) Any person who assaults any person with intent to steal anything, and at or immediately before or immediately after the time of the assault, uses or threatens to use actual violence to any person or property in order to obtain the thing intended to be stolen, or to prevent or overcome resistance to its being stolen, is guilty of a felony and is liable to imprisonment for seven years together with corporal punishment not exceeding fourteen strokes.
(2) If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the assault, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.
Section 296 (2) establishes the offence known as ‘robbery with violence’ and Section 297 (2) establishes the offence known as ‘attempted robbery with violence’. For both offences, the sentence is mandatory execution.
The death sentence is permitted under the Constitution of Kenya. Section 71 (1) of the Constitution provides as follows:
‘No person shall be deprived of his life intentionally save in execution of the
sentence of a court in respect of which he has been convicted.’
Since criminal penalties are based on legal provision, Section 71 (1) implicitly validates any penal law that prescribes execution as a sentence. The scope of the validation appears to extend to any law that prescribes the death sentence in mandatory terms.
Statement of the International Law
International law does not foreclose the death penalty in execution of a competent court ruling. It does impose severe restrictions on executions. The trend toward abolition culminates with the Second Optional Protocol to the International Convention on Civil and Political Rights (ICCPR No. 2) for the abolition of the death penalty. Pursuant thereto, many countries have since abolished the death penalty through legislation for instance, the EU (since 1983). In the UK, the Human Rights Act has abolished the death penalty. Other states have abolished the penalty through judicial determination. The maximum penalty for persons convicted of war crimes, crimes against humanity, or genocide by the ad hoc International Criminal Tribunals for Rwanda and Yugoslavia is life imprisonment. The Rome Statute, which establishes the International Criminal Court, follows this trend, so that de facto and de jure the United Nations is abolitionist.
Comparative international law jurisprudence discloses that the legality of the death penalty is contested under three heads:
i. the death penalty violates the right to life:
ii. the death penalty violates human dignity
iii. the death penalty is cruel, inhuman treatment
The right to life, the protection of human dignity and the prevention of cruel, inhuman and degrading treatment are recognised in all major international human rights treaties and conventions. Moreover, cruel, inhuman and degrading treatment is prohibited under the Convention Against Torture, Cruel, Inhuman and Degrading Treatment (CAT).
Article 3 of the Universal Declaration of Human Rights (UDHR), 1948 declares ‘Everyone has the right to life, liberty and security of person’
The International Covenant on Civil and Political Rights (ICCPR), 1967 recognises the right to life and the obligation to abolish the death penalty.
Article 6 declares:
6(1) Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.
(2) In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present covenant and the Convention on the prevention and Punishment of the Crime of Genocide. This penalty can only be carries out pursuant to a final judgement rendered by a competent court.
(6) Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State party to the present Covenant.
The Second Optional Protocol obligates a state party to abolish the death sentence under Article 1. Kenya has not ratified this Protocol.
The African Charter on Human and Peoples’ Rights declares:
Article 4: Human beings are inviolable. Every human being shall be entitled to respect for his life and integrity of his person. No one may be arbitrarily deprived of this right.’
Kenya has ratified the African Charter, but has not provided through legislation for its effect under her municipal law.
Interpreting Section 71 of the Kenyan Constitution
In Kenya, there is a possibility through judicial determination, to invalidate a practice sanctioned by law on the grounds that it is unconstitutional. The constitution is at the apex of laws and any other law that is inconsistent with the constitution is ipso facto null and void. Such a general formulation would include treaty provisions that are incorporated into legislation. On the other hand, common law allows courts when interpreting the constitution, a rebuttable presumption to give effect to a treaty provision if it is not expressly in conflict with the constitution. When interpreting an ambiguous constitutional provision, or deciding a conflict between two constitutional provisions, Kenyan courts can consider a treaty provision to resolve the ambiguity or conflict, provided the state has ratified the concerned treaty.
In the existing case, the constitution permits judicial killing to implement a competent judgment. Does the constitutional standard conflict with the standards that the country has committed to internationally? On the face of it, Section 71 legitimates the intentional violation of the right to life by the state. The intention of the Section is to impose a negative duty on the state so that the second part dealing with court decisions is merely a proviso to save the authority of the courts. In other words, the constitution leaves the regulation of the death penalty to the courts. This authority is however subsequently compromised by the penal statutes, first by imposing a mandatory death sentence for certain offences, and secondly by making all capital offences to be non-bailable. The authority of the courts under section 71 is not final, and possibly a conflict may exist between the meaning of Section 71 and other section on the question of the right to fair trial for an accused person and the human rights jurisdiction of the court.
Moreover, Section 71 is ambiguous as to the method of carrying out an execution. It says nothing about it. Provided, one is executed following a competent court decision, the method could be by electrocution, stoning, hanging or even poisoning. Still, because Kenya has ratified the CAT, the court is able to determine that a method of carrying out an execution is cruel and inhuman and therefore unconstitutional. It is therefore possible for the court under Section 71 to consider international standards to resolve an ambiguity or a conflict with another section.
Death Penalty under international human rights law
Does the express authorisation of the death penalty itself violate international standards? Although the trend in international standards is abolitionist, there is no specific treaty provision outside the Second Protocol to the ICCPR that expressly prohibits application of the death penalty. The treatment of the situation by the UN Committee for Human Rights is persuasive upon Kenya but not binding as the country has not ratified the ICCPR Protocol No.2. The UN Committee on Human Rights has stated that the death penalty is intrinsically cruel and degrading punishment.
Under the African Charter for Human and Peoples’ Rights, the African Commission for Human and Peoples’ Rights is yet to make a substantive determination on the legality of the death penalty under the Charter. However, the Charter only prohibits arbitrary executions. The Commission has nonetheless decided that a constitutional provision does not afford a state a reason for non compliance with Charter obligations.
While the treaties to which Kenya is a state party are not decisively prohibitive, it is not contested that the abolitionist trend makes the right to life part jus cogens. Peremptory norms forming the body of customary international law (jus cogens) are norms that have become universally accepted as binding and from which derogation is not permitted. Such norms can only be overturned by new contrary norms reaching similar status. However, even if the state argued that the question of the death penalty was not universally settled under the jus cogens approach, it would still be bound to reconsider the death penalty on the ground of the spirit of international law under the UDHR and the ICCPR.
The implication of state ratification is dealt with by the Vienna Convention on the Law of Treaties.
Article 26 obligates states parties to observe treaties in force under the principle of puncta sunt servanda, and to perform them in good faith.
Article 27 prohibits state parties invoking the provisions of their municipal law as justification for failure to perform treaty obligations.
The Vienna Convention is clear that the act of ratification requires a state to take measures to comply in good faith. This means that even when measures taken are not necessarily directly related to implementing treaty obligations, they should have adjunct purposes in respect of the spirit of being bound.
Having ratified ICCPR, Kenya is obligated under its Article 6 to take measures to restrict application of the death penalty under its law, even if it does not abolish it de jure. Kenya does not deny that in spite of the existing of the penalty, it has not implemented an execution since 1985.
Kenya has ratified the Rome Statute establishing the International Criminal Court. The jurisdiction of the court is limited to war crimes, genocide and crimes against humanity – crimes considered to be the most heinous universally. The punishment meted by the court upon conviction for any of these crimes, which also constitute gross human rights violations, is life imprisonment. By ratifying the Rome Statute, one could argue that the state has implicitly acknowledged that the most serious punishment that should be meted out and restricted under law to the most heinous of crimes, is life imprisonment.
Through judicial determination, other states have reached a similar conclusion. The most famous recent example is the South African decision in State vs Makwanyane & Anor. In this case, the SA Constitutional Court found the death penalty to be unconstitutional on grounds that it was cruel, inhuman and degrading punishment, and that it contravened the right to life. The offences in Makwanyane were murder, rape, aggravated robbery and kidnapping. It is worth noting that under S. 277 of the Criminal Procedure Act of SA only a superior court can pass a sentence of death. Moreover, and unlike with the Kenyan constitution, the SA Constitution of 1996 is open to international standards and it explicitly requires the constitutional court to consider international standards when exercising human rights jurisdiction.
Justice Chaskalson, then president of the Court, held that the death penalty violated human dignity and that the lengthy incarceration on death row prior to execution also violated human dignity although imprisonment per se did not. In addition, the respected judge found that although the court is charged with stipulating punishment, it is not an open ended charge but it is limited by the end result of preserving human dignity. Hence, judicially sanctioned corporal punishment is unconstitutional nevertheless because it is an affront to human dignity.
In reaching a determination to apply the death penalty, the court under Section 71 must uphold human rights. The judicial technique in sentencing is to reach a proportionate punishment on the basis of different justifications such as deterrence and retribution. When the end result will violate human rights, the court has a higher duty to the constitution as the custodian of the Bill of Rights. The end result of applying the death penalty can violate rights in two senses, first by destroying the life in which human dignity and other rights inhere inalienably. Secondly, because the means of carrying out the execution could themselves constitute violation of human rights. In the Tanzanian murder case of Mbushuu & Anor vs. Republic (1995), although judicially sanctioned execution was held to be consistent with the constitutional guarantee of the right to life, it was held that hanging was inherently cruel, inhuman and degrading punishment. In reaching the decision, the court followed the Unites States Supreme court decision in Furman v Georgia (1972).
Furham vs Georgia abolished the death penalty in the US in 1972, but it was reinstated in 1977. Today, the inter American Convention precludes member states from reintroducing the death penalty. This case considered the particular aspects of state death penalty practices and found that they violated respect for human dignity. Since then the abolition argument has considered philosophical and ethical-moral arguments in favour or against the abolition of the death penalty.
The ground that hanging is cruel and inhuman having been upheld in Africa is particularly important for Kenya where it is the only legal practice for carrying out civilian executions.
Right to Fair Trial and its implications for the prosecution of and sentencing for robbery with violence and attempted robbery with violence:
The second limb deals with the procedure and practice in criminal trials for the two capital offences. The first point to note is that under Kenyan law, the right to bail is denied for capital offences under Section 77 of the Constitution. The second point is that the sentence in respect for these two offences may be prescribed by a lower court, without legal need for confirmation by a superior court other than by ordinary appeal or review. The third point is that an accused person is not entitled to legal assistance for his or her defence notwithstanding the severity of the penalty, which is mandatory.
These three points are critical in reaching a conclusion that the trial for these capital offences (a) does not afford adequate guarantees for the right to fair trial, and (b) the sentence is disproportionate given that the formal law stipulates a mandatory death penalty for these offences.
Right to fair trial
An accused person has a right to legal assistance assigned to him or her without cost if he or she lacks sufficient means to afford legal services.
The entitlement to legal defense as of right should be determined in the interests of justice. First, the severity of the offence should be considered. In the hierarchy of offences, it is assumed that murder and treason are the most serious because the superior courts alone are charged with jurisdiction over the two offences. Procedural guarantees ensure poor defendants have access to a public defense lawyers under a system known as pauper briefs. This practice admits to the seriousness of the offence. Treason in its nature is an offence against the supreme law, the constitution, while murder is an offence in which life is destroyed. Robbery and its violent form are property offences in which harm or its apprehension may be inflicted upon the victims. In robbery with violence and attempted robbery with violence, an inchoate offence, no discrimination is made in comparison to murder and treason regarding the severity not withstanding that they draw a death sentence. There are no criteria for distinguishing the death penalty offences, making the choice of mandatory sentence arbitrary and contrary to the interests of justice. This conclusion is based on procedures that deny or limit the rights of persons accused of these offences, to equal protection under the law
Moreover, the severity of the penalty should be considered. The interests of justice always require legal assistance in any capital case, including appeal, executive clemency, commutation, amnesty or pardon.
Principally because the death penalty is involved, a superior court should have jurisdiction to sanction the sentence, or if the trial of the capital offence is before the subordinate courts, to confirm it and decree it.
Although the Kenyan constitution guarantees everyone the right to legal counsel from the moment of arrest and detention or once charged, it does not guarantee the positive obligation of the state to provide a lawyer to certain accused persons. An accused person has the right to choose his own defence lawyer. This guarantee does not include legal assistance provided by the state if the accused person lacks sufficient means. It therefore falls below the ‘interests of justice’ test. See Article 6 of the European Convention on Human Rights and the Draft Guidelines on the right to fair trial and legal assistance developed by the African Commission for Human and Peoples’ Rights.
In the current case, the claimants are indigent and cannot afford to pay for their ;legal defence. The majority of convicts on death row in Kenya were sentenced before subordinate courts without the benefit of counsel. Most cannot afford a lawyer, while a few who do appeal. The great number of capital convictions by subordinate courts is overturned by the superior court, pointing to laxity in procedural compliance in the subordinate courts.
Robbery with violence and attempted robbery with violence are not severe offences because the law contemplated their trial by subordinate courts. The situation was not affected when the law was changed in 1969 to make the capital offences.
The imposition of the death penalty as a mandatory sentence for robbery with violence and attempted robbery with violence is disproportionate. The imposition of a mandatory sentence denies a convicted person the opportunity to mitigate and reduces the discretion that a trial judge has under the constitution, and on the basis of the evidence, to determine proportionate sentence.
The detention of robbery with violence suspects without any opportunity for bail violates international standards. In this case the legislative judgement to treat capital offences as non-bailable inflicts the punishment of imprisonment on suspects prior to their sentencing and it negates the fundamental presumption of innocence. Whether or not to award bail should be left to judicial discretion which should be guided only by the legislated bail options.
Since the court cannot directly enforce the UN Human Rights Committee recommendations within the corpus juris civilis of Kenya, the court must be urged to read in the standards to which Kenya has committed to under the constitution as incorporating such recommendations. They are the best means of interpreting any ambiguity in the constitution.