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Reprinted 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)
The 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.