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Review of the mandatory death sentence

Shatikha Chivusia of giving her remarks during the media briefing session

Commissioner Shatikha Chivusia of Kenya National Commission on Human Rights giving her remarks during the media briefing session

On 30th July 2018, Kenya National Commission on Human Rights played host to a media briefing session and forum of the taskforce members on the review of the mandatory death sentence to discuss the pertinent issue of the death penalty in Kenya. The Kenya National Commission on Human Rights takes pride to have partnered with the members of the taskforce and other key stakeholders in ensuring the forum was a success. Ms Anne-Marie Okutoyi, KNCHR Head of Reforms and Accountability is a member of the taskforce that was appointed by the Attorney General. Ms Maryann Njau-Kimani leads the 15 member taskforce as the Chairperson.

During her presentation to the invited guests and the media, Ms Anne-Marie Okutoyi said; “The taskforce proposes life imprisonment with the various terms of eligibility for parole depending on aggravating circumstances and mitigating factors that an offender can present before a judicial officer”.

The Chairperson of the taskforce Ms Maryann Njau-Kimani said; “under the current legal framework, those serving life-long detention can only be set free under the President’s prerogative of mercy upon recommendation by the Power of Mercy Committee (POMAC) headed by the Attorney General.

On 14th December 2017, the Supreme Court in a landmark ruling held that the mandatory nature of the death penalty as applied in Kenya was unconstitutional. As such the Court ordered that the Attorney General come up with a taskforce that shall operationalize this judgment in terms of legislative reforms and resentencing hearings for all those who are affected by the same. The Kenya National Commission on Human Rights having been one of the parties in the Supreme Court case and further as a member in the taskforce it takes great pride in the development that Kenya has taken on this pertinent issue. Even though the Supreme Court did not abolish the death penalty, the Commission acknowledges that this is a step in the right direction in fulfilment of the State’s obligations as contained in the regional and international human rights treaties that Kenya has ratified. Indeed, the implication of the Supreme Court ruling is that the application of the death penalty shall now be restrictive only to serious offences and the discretion has now been placed on judicial officers to consider aggravating and mitigating factors in the commission of the offence.   Similarly, the indefinite nature of the life sentence was declared unconstitutional and the task force was tasked to come up with proposals on the parameters. 

While it remains the prerogative of every State to decide the kind of penalties applicable for each offence, there has been a global advocacy towards the abolition of the death sentence. Discussions around abolition have shifted the paradigm of the death penalty from a domestic penal sanction discussion to a human rights issue. 

As the taskforce members embarks on the important task ahead of them and one that will shape the criminal justice reforms agenda in our country, it is critical that public participation is incorporated in the exercise. Further, it is imperative that the input of key stakeholders especially

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