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Excerpted From: Andrew Novak, Constitutional Reform and the Abolition of the Mandatory Death Penalty in Kenya, 45 Suffolk University Law Review 28 (2012) (454 footnotes omitted) (Full Document)

deathpenaltyThe death penalty is rapidly receding in the former British colonies of common-law Africa. Although proposals to institute or retain the death penalty for a wide assortment of crimes are not uncommon, actual judicial executions have grown extremely rare south of the Sahara Desert. The death penalty has fallen into disuse in most of common-law Africa, and many of these countries are now considered de facto abolitionist. As in other parts of the retentionist world, death-penalty abolition is an incremental process, nurtured more by small steps--stays of execution, grants of clemency, judicial clarification--than by dramatic ones, the most important of which for the continent of Africa was the 1995 decision of the Constitutional Court of South Africa, deeming the death penalty unconstitutional. Upon independence, former British colonies inherited nearly identical constitutions drafted at Lancaster House in London, each of which specifically saved the death penalty from constitutional challenge. Although common-law African constitutions have been written and rewritten since independence during the eras of one-party rule in the 1970s, of economic adjustment in the 1980s, and democratization in the 1990s, most former British colonies retain similar constitutional and legal structures, including retention of the death penalty in national penal codes. The mandatory death penalty, a relic of nineteenth century Britain, is the most constitutionally vulnerable aspect of African death-penalty regimes, and is facing sustained challenge in a number of countries.

On July 30, 2010, the Kenyan Court of Appeal invalidated the mandatory death penalty for murder, becoming the third national court in common-law Africa to do so. The mandatory death penalty provided an automatic death sentence for any person convicted of murder, without judicial discretion to substitute a lesser sentence. The penalty was transplanted from Great Britain to the colonies without any benefit from the major criminal-justice reforms, including death-penalty abolition, passed by the British Parliament in the 1950s and 1960s. Since the 1977 decision of the United States Supreme Court in Woodson v. North Carolina, which invalidated the mandatory sentence in favor of a discretionary regime, the mandatory death penalty has been on the sharp and rapid retreat worldwide. Kenya joins a long line of former British colonies in finding the mandatory death penalty incompatible with global human-rights norms. The courts of each of these former colonies, relying on similar constitutional texts originally drawn up by departing British officials, cite each others' case law and form a body of global “common law” death-penalty jurisprudence.

This Article first addresses the retreat of the mandatory death penalty worldwide and constitutional challenges brought against the penalty on four continents. The Kenyan Court of Appeal's decision in Mutiso v. Republic is placed in both this global context, and a historical and cultural one, through a detailed analysis of the history of the death penalty and its use in colonial and independent Kenya. The Article then compares the Court's decision in Mutiso with the case law from other common-law countries, particularly the recent decisions arising out of the Supreme Court of Uganda and the Supreme Court of Appeal of Malawi. Finally, this Article will discuss the contribution of the three decisions--in particular, Mutiso--to the global corpus of death-penalty jurisprudence and their expected impact on similar challenges percolating in other African common-law nations.

Like Malawi and Uganda, the death-penalty regime in Kenya is largely a foreign import that has fallen into disuse after abuses during the colonial era and periods of authoritarian one-party rule after independence. Unlike Malawi and Uganda, which constructed entirely new and progressive constitutions during the transition to multiparty democracy in the 1990s, Kenya continued to operate under an amended version of its independence constitution, which had certain flaws as to the structure of government and protection of fundamental rights. On August 4, 2010, less than a week after the Court of Appeal's decision in Mutiso, Kenyan voters went to the polls to overwhelmingly approve a new constitution, the second since Kenya's independence on December 12, 1963. As one of the most legally mature countries in Commonwealth Africa, the fall of the mandatory death penalty in Kenya may have far-reaching implications for other African countries working under a similar constitutional framework. The new Kenyan Constitution will eventually lead to the establishment of a Kenyan Supreme Court, as an additional layer of appellate review above the Court of Appeal. Should Kenya's 2010 Constitution usher in an era of stability and peace, particularly after the failure of the 2005 constitutional referendum and the 2007 election crisis, the stature of the Kenyan judiciary may increase even further.

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The mandatory death penalty is on the rapid retreat worldwide as postcolonial common-law countries integrate international human-rights norms into their domestic legal systems. Over several decades in many cultural contexts, including the Caribbean, Africa, and South Asia, the mandatory death penalty was replaced by a discretionary death-penalty regime that allowed a judge to consider mitigating and aggravating circumstances at the sentencing phase of a trial. The mandatory death penalty almost uniformly led to bloated death rows, even in countries that rarely perform executions, and in no country was the contradiction as great as in Kenya. The decision of the Kenya Court of Appeal, striking down the mandatory death penalty for murder, aligns Kenya with an emerging global consensus that finds an automatic sentence of death to be cruel, inhuman, and degrading punishment.

The death penalty has a particularly troubled history in Kenya, and, given the maturity of Kenya's legal order and the constitutional changes underway, the country was ripe for such a challenge. First imposed by British colonizers in the late nineteenth century, the death penalty was used regularly as a means not only of criminal punishment but also of showcasing imperial power. During the state of emergency in the 1950s, the death penalty was used extensively on a scale that the British had never employed before or since. After independence, eroding democracy in Kenya led to a weakening of the independence of the judiciary and the legal profession, which in turn led to capital prosecutions of political opponents. Since 2002, with the fall of the Kenyan African National Union and President Daniel arap Moi, Kenya has been renegotiating a constitutional order that appears finally to have succeeded with the new constitution of 2010. The Court of Appeal's ruling in Mutiso ensures that this new constitutional order will have regard to international human-rights norms, as interpreted by an active and independent judiciary.

In addition to solidifying an emerging consensus on the mandatory death penalty, following the highest courts of Malawi and Uganda on the African continent, the Kenyan Court of Appeal, in turn, made a contribution of its own. To the extent that the Court of Appeal suggested that the mandatory death penalty was unconstitutional for crimes other than murder--in particular, treason, armed robbery, and attempted robbery with violence--the Court went further than most of its predecessors. The International Covenant on Civil and Political Rights codified increasingly accepted state practice that the death penalty should be reserved for only the most-heinous crimes, and especially premeditated murder. The crime of attempted robbery with violence, in particular, has a history of political prosecutions, and it likely does not qualify as a “most serious crime.”

The Kenyan Court of Appeal decision in Mutiso was also notable for its emphasis on the constitutional right-to-life provision, one unaddressed by the Constitutional Court of Malawi and the Supreme Court of Uganda. The right-to-life provision has a particularly long and controversial history in Kenyan constitutional history. Even in the 2010 constitutional debate, the scope of the right-to-life clause was the most controversial issue, particularly because of the abortion claw-back clause. According to the Kenyan Court of Appeal, because the mandatory death penalty is not constitutionally saved, the application of the penalty to a person not meriting death is a violation of the right to life. This was a somewhat novel holding, as the Court framed it, and will likely appear in future mandatory death-penalty challenges in Africa.

Another aspect of the Kenyan decision that made the Court's ruling even more remarkable is that the Court took an extremely restrictive approach in interpreting Kenya's partial savings clause at Sec. 74(2) of the Constitution, which prevented constitutional challenge to a law that “authorizes the infliction of any description of punishment that was lawful in Kenya on 11th December, 1963.” As the Malawian and Ugandan courts did not reach this issue because of their more modern constitutional orders, this ruling could have important implications for challenges in countries with modified independence constitutions, such as Botswana and Tanzania.

The Court's reasoning, that the existence of a mechanism for executive clemency does not solve the essential constitutional problem of a mandatory death penalty, is likewise in accord with the emerging consensus. Shifting sentencing discretion from the trial judge to an executive body removes it from a credible, transparent actor who can assess credibility of the parties, interact with legal representatives in an adversarial proceeding that safeguards the rights of the accused, and explain his or her reasoning in a written decision reviewable by higher courts. Executive clemency is an opaque procedure; legal representation is often not permitted in a closed hearing and the accused may not be informed of the outcome or have any right to participate in the proceeding. Indeed, the trial represents the most open and transparent aspect of the criminal justice system; in many countries in common-law Africa, other aspects, including parole, actual executions, and burial of a deceased prisoner, are shrouded in secrecy.

The Kenyan Court of Appeal, in dicta, brought the country's constitutional criminal law in accord with the increasing weight of Commonwealth authorities on another point as well: the death-row “syndrome” or “phenomenon.” Even though Kenya is a de facto abolitionist country-- it hasn't performed an execution in nearly twenty-five years and likely never will again--human-rights activists believe that this does not solve the essential problem, and the uncertainty may make the death-row phenomenon worse. The de facto moratorium on executions is due, at least in part, to the reluctance of Kenya's ruling elites to sign death warrants, including President Kibaki and likely Prime Minister Raila Odinga as well, the frontrunner to be Kibaki's successor. Political circumstances can and do change, and the death penalty remains a lawful sentence in Kenya, albeit one with a troubled history. “Death row inmates are kept as if they are cows in a slaughterhouse waiting to be slaughtered, yet the slaughter man is not around,” one human-rights activist noted. Roughly 800 criminals per year were sentenced to death in Kenya during the 2000s, and though that number will doubtlessly be smaller after Mutiso, death row will continue to grow even as executions do not resume. This ensures that the death-row phenomenon will continue, and the Court of Appeal may be receptive to a challenge.

A corpus of transnational death-penalty jurisprudence has formed on the subject of the mandatory death penalty, and national courts will continue to draw from it as persuasive, given the similarities of postcolonial constitutional regimes. With Kenya, three African high courts have now made their own contribution to this body of court decisions and customary law with celebrated rulings that have important implications for promoting judicial prestige and independence, for integrating international human rights into domestic legal systems, and for improving the transparency and the rationality of the criminal-sentencing process.

Andrew Novak is an attorney-advisor in the Office of Administrative Law Judges, U.S. Department of Labor. He has a Juris Doctor from Boston University School of Law and a Master of Science in African Politics from the London School of Oriental and African Studies.