THE SUPREME COURT OF KENYA
AN APPEAL AGAINST THE DECISION OF THE
COURT OF APPEAL
AT NAIROBI
BETWEEN
THE REPUBLIC OF
KENYA……………………………………………………………….……………………………………………………………APPELLANT
AND
CHARO KADENEGE MWAVIRO alias ‘ZIPAPA’………………………………………………………...………………….……..RESPONDENT
Counsel for the Republic
Miss Kiama Catherine
Contents
Table of Authorities……………………………………………………………………………….3
Question presented………………………………………………………………………………...5
Rules of evidence involved……………………………………………………………….……….6
Standard of review……………………………………………………………..………………….7
Statement of the case…………………………………………………………...…………………7
Summary of argument……………………………………………………………………………..9
Main arguments
a. The
Court of Appeal erred in finding that Section
297 (2) of the Penal Code, Chapter 63, Laws of Kenya is inconsistent with
and contrary to Articles 24 (1); 24 (2)
(c) and 26 (1) (3) of the Constitution of Kenya…………………………………………………………12
b. The Court of Appeal erred in finding that Section
297 (2) of the Penal Code, Chapter 63, Laws of Kenya is inconsistent with
and contrary to Articles 29 (f) and 25
(a) (c) of the Constitution of
Kenya and Articles 7 of the
International Covenant on Civil and Political Rights…………………………………………………………………………………….17
c. The Court of Appeal erred in finding that Section
297 (2) of the Penal Code, Chapter 63, Laws of Kenya is inconsistent with
and contrary to Article 6 of the International Covenant on Civil
and Political Rights…………………………………………………..22
d. The Court of Appeal erred in finding that Section
297 (2) of the Penal Code, Chapter 63, Laws of Kenya is inconsistent with
and contrary to Article 28 of the
Constitution……..24
Conclusion…………………………………………………………………………………...26
TABLE
OF AUTHORITIES
Constitutions
(i) The
Kenyan Constitution of 2010
(ii) The
Zimbabwean Constitution of 1979
(iii) The
Nigerian Constitution of 1979
(iv) The
Ugandan Constitution of 1995
(v) The
South African Constitution of 1996
(vi) The
Indian Constitution of 1950
Kenyan
Case
(i)
Chemagong v. R[1984] KLR 611.
(ii)
David Njoroge Macharia -v- Republic
Criminal Appeal No. 497 of 2007[2011]
eKLR
(iii) John Swaka v The Director of Public Prosecutions & 2 others[2013] eKLR
Constitutional Petition 318 of 2011
Regional
Case
(i)
Catholic Commission for Justice and Peace in
Zimbabwe vs. Attorney General and Others1993) 2LRC 279
(iii) Republic v Mbushuu and another 3 1995
TLR 97
(iv)
Susan Kigula & 416 others Constitutional
Petition No 6 of 2003
(v) The State versus
T Makwanyane and M Mchunu Constitutional
Court of the Republic of South Africa (1995) ILRC 269 Cct/3/94
Cases
from other jurisdictions
(i) Bacan Singh vs. State of Punjab (1983) (2) SCR 583
(ii) Earl Pratt and Anor vs. Attorney General for Jamaica and Another (1994)2
ACI (PC)
(iii) Furman v. Georgia 408 U.S. 238, 290 (1972)
(iv)
Jaga vs. Donges No 1950 USA 653
(v) Noel Riley and other vs. Attorney General for Jamaica and Anor (191983)1
AC 719(PC)
(vi)
Pratt and Morgan vs. Attorney General of
Jamaica and others(case No 27 vol 3) No 210 of 1986 and 225 of 1987
Statutes
(i) Civil Procedure Act, Chapter 21, Laws of Kenya
(ii) Judicature Act ,Chapter 8, Laws of Kenya
(iii) Penal Code, Chapter 63, Laws of Kenya
QUESTION PRESENTED
a. Whether Section 297 (2) of
the Penal Code, Chapter 63, Laws of Kenya is inconsistent with and contrary to Articles 24 (1); 24 (2) (c) and 26 (1) (3)
of the Constitution of Kenya.
b. Whether Section 297 (2) of
the Penal Code, Chapter 63, Laws of Kenya is inconsistent with and contrary to Articles 29 (f) and 25 (a) (c) of the Constitution of Kenya and Articles 7 of the International Covenant
on Civil and Political Rights.
c. Whether Section 297 (2)
of the Penal Code, Chapter 63, Laws of Kenya is inconsistent with and contrary
to Article 6 of the International Covenant on Civil and Political Rights.
d. Whether Section 297 (2)
of the Penal Code, Chapter 63, Laws of Kenya is inconsistent with and contrary
to Article 28 of the Constitution.
RULE OF EVIDENCE INVOLVED
The Criminal Procedure Act Section 72 (1) (a) (b) (c) provides:
(1) ‘[E]xcept where otherwise expressly provided in this Act or by any
other law for the time being in force ,an appeal shall lie to the Court of
Appeal
from every decree passed in appeal by the High Court ,on any of the following
grounds, namely:
(a) The decision being contrary to law or to some usage having the
force of the law;
(b) The decision having failed to determine some material issue of law
or usage having the force of law;
(c) A substantial error or defect in the procedure of this Act or by
any other law for the time being in force, which may possibly have produced
error or defect in the decision of the case upon the merits.’
The impetus of these
provisos are
to the effect that the
court has no jurisdiction to entertain a second appeal on the grounds of
erroneous finding of fact, however gross the error may seem to be
.
The appellate court will not normally interfere with concurrent findings of
fact by the two courts below unless such findings are based on no evidence, or
are based on a misapprehension of the evidence, or the courts below are shown
demonstrably to have acted on wrong principles in making the findings
as laid down as a general principle in the
case of
Chemagong v. R
Section 78(1) of the Criminal
Procedure Act mandates the appellate court, subject to any limitations and
conditions as may be prescribed by the Rules, to exercise its appellate
jurisdiction in one or more of the following ways;
(a)
‘[d]etermine the case
finally having regard to the grounds upon which the appeal is preferred’...
The Penal Code Section 297
provides:
(2) ‘[I]f 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..’
STANDARD OF REVIEW
Offences
of murder, treason and robbery with violence, including attempted robbery with
violence, carry a mandatory death sentence in Kenya. This is provided for under
Sections 204, 40 (3), 296 (2) and 297 (2)
of the Penal Code.
Whereas the Constitution of Kenya protects the right to life, Article 26 (3) takes it away to the effect that ‘[n]o
person shall be deprived of his life intentionally except to the extent
authorisied by this Constitution or other written law.’
The
appellate court will review the Constitutionality of the death penalty in light
of the current Constitution viz-a-viz
other Regional and International instruments which Kenya is party to. The scope
of this review is limited to Section 297 (2) of the Penal Code
of Kenya.
STATEMENT OF THE CASE
On or around the night of the 24th December 2008 at
around 7:30 pm, Mr Charo Kadenge Mwaviro alias
‘Zipapa’ in the company of another raided the complainant’s; Mama Rosa Okumbe
Mlang’ombe’s hardware shop at Garsen Market of Tana River County with an
intention
to steal. The accused person proceeded to search the cash till and
threatened to kill the complainant if she failed to comply, or if she attempted
to raise an alarm.
In the process of the altercation, the complaint sustained head
injuries and the court concluded that her injury and subsequent loss of
consciousness resulted from the direct attack by either of the perpetrators. The
Respondent herein was arrested but his companion however escaped and was still
on the run at the end of the trial in the lower court.
Upon completion of the trial, the trial court by a majority of two
to one, found the Respondent guilty as charged and reserved mitigation plea and
sentencing for a later date. The Respondent in the mean time filed an
application before the High Court under Article
165 (3) (b) (d) (i) (ii) of the Constitution
challenging the constitutionality of the mandatory death penalty facing him
following conviction. The Respondent further sought an interpretation of the
Constitution arguing that the mandatory death penalty as prescribed by the Penal
Code
is at a variance with the Constitutional and International law. The Court of
Appeal unanimously reversed the decision of the High Court. The State Appeals the
decision to the Supreme Court under Article
163 (b) (i)
and Article 163 (4) (a) of the Constitution.
SUMMARY OF THE
ARGUMENT.
The right to life, under the Kenyan Constitution and as a general
principle of human rights is inherent and universal and yet also subject to the
possibility of lawful deprivation. Thus, that
means there can be instances in which the due process of law will deny a person
his right to life or his protection if sanctioned by written law or the Constitution.
This is explicitly provided for under Article
26 (3) of the Constitution
which limits the very fundamental right to life concluding that the right is
not an absolute right but rather a qualified right.
Article 2 (1) of the Constitution states that ‘[t]his Constitution is supreme
law of the Republic and binds all State organs at both levels of government.’ Further
Article 2 (4) provides that ‘[a]ny law,
including customary law that is inconsistent with this Constitution is void to
the extent of the inconsistency, and any act or omission in contravention of
this Constitution is invalid.’
The Judicature Act , Section
3
offers a hierarchy of sources of laws in Kenya but does not mention
International law, the same has however been reconciled by Articles 2 (5) and (6) of the Constitution which recognizes that general rules of international law and ratified treaties or
convention as forming part of the law of
Kenya.
In
general, Kenya has a strong record of ratifying major International and
Regional Human Rights Instruments. In particular, Kenya has shown its
commitment by accenting to the International Covenant on Civil and Political
Rights
on May 1st 1972. Kenya also became party to the African Charter on
Human and People’s Rights as of January 23rd 1992.It is prudent to
note that Kenya abstained from signing and ratifying the First Optional
Protocol to the ICCPR, Recognizing Jurisdiction of the Human Rights Committee
and the Second Optional Protocol
to the ICCPR, Toward the Abolition of the Death Penalty.
Under
the previous constitutional regime, Kenya adhered to a dualist legal system and
as such international treaties and obligations did not take immediate effect
and required implementation through domestic legislation. The result was that
as such, the full implementation of a number of treaties and convention
ratified could only be realized once national legislation was passed to
effectuate the same. It appears that there has been a shift toward a monist
system as provided for under Article 2(5)
and 2 (6) of the new Kenyan
Constitution. As a consequence therefore it seems that international law need not be domesticated and as a result it seems
to appear that international law may now have automatic effect in domestic law
presently. In Re The Matter of Zipporah Wambui Mathara
the superior court held that by virtue of the provisions of Section 2
(6) of the Constitution of Kenya 2010, International Treaties, and
Conventions that Kenya has ratified, were imported as part of the sources of
the Kenyan Law and thus the provisions of the International Covenant on Civil
and Political Rights (ICCPR) which Kenya ratified were held to be part of the
Kenyan law.
The Constitution boasts
of it supremacy , presently is clear and unambiguous; it does not expressly ban
the death penalty. It is supreme to any other law and most conspicuously is the
draft’s man deliberate inclusion of the
limitation to the right to life as provided for under Article 26 (3) which could lead to adverse conclusions being drawn to the effect that Section 297 (2) of the Penal Code is in fact constitutional and
therefore valid to the extent prescribed by any other written law and the
Constitution.
MAIN ARGUMENTS.
a.
The Court of Appeal erred in
finding that Section 297 (2) of the
Penal Code, Chapter 63, Laws of Kenya is inconsistent with and contrary to Articles 24 (1); 24 (2) (c) and 26 (1) (3)
of the Constitution of Kenya.
Article 24 (1) is to the effect that
‘[a]right or fundamental freedom in the Bill of Rights shall not be limited
except by law and then only to the extent that the limitation is reasonable and
justifiable in an open and democratic society based on human dignity, equality
and freedom taking into account relevant factors, including-
(a) The nature of the right or fundamental freedom;
(b) The importance of the purpose of limitation;
(c) The nature and extent of the limitation;
(d) The need to ensure that the enjoyment of rights and fundamental
freedoms by any individual does no prejudice the rights and fundamental
freedoms of others; and
(e) The relation between the limitation and its purpose and whether
there are less restrictive means to achieve the purpose.’
The purpose of the Criminal justice
system is to firstly punish the offender for the offence committed. Secondly, an
effective system aims to protect members of the general public from eminent
danger posed by the criminal whilst striving
to rehabilitate the offender for assimilation back into society after
succefuly serving their time. The criminal justice system further endeavors to
deter members of the society from engaging in anti-social behavior and
consequently does so by using offenders as examples of what may befall others
who commit such offences. It could be argued that the system is also used as a
means to obtain revenge though clothed and backed up by legal sanction.
Article 24 provides for the
limitation of rights and fundamental freedoms as enshrined by the Constitution.
This proviso recognizes that some rights are subject to limitation through law
in this particular appeal through the Penal Code. Section 297 (2)
states that ‘[I]f 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.’ It is
imperative to note that the limitation to the right to life is only legitimate
for the offences
of murder, treason and robbery with violence, including attempted robbery with
violence, which all carry a mandatory death sentence in Kenya. It could be viewed from the onset that the nature of the
offences which result in capital punishment are aggravated offences in nature.
It therefore could be argued that the limitation to the right to life as
provided for in Article 26 is
reasonable given the gravity of the offences as mentioned which carry the death
penalty. It could be further demonstrated that the application of this
limitation is not arbitrary and as such is justifiable. The Kenyan Constitution
is relatively new and is in fact three
years shy. The Kenyan people had a unique opportunity to expressly condemn and
abolish the death penalty if they so wished, failure to do so demonstrates that
the Kenyan people regard the death penalty as an acceptable form of punishment.
Further inference could also be drawn from the direct failure of the Kenyan people
to be party to the First Optional Protocol to the International Covenant
on Civil and Political Rights, Recognizing Jurisdiction of the Human Rights
Committee and the Second Optional Protocol to the International Covenant on Civil
and Political Rights, Toward the Abolition of the Death Penalty.
Article 25
of the Constitution lists the rights and freedoms that
may not be limited despite any other provision as provided in the Constitution
and in any other law. These include:
(a)
‘the freedom from torture and cruel, inhuman or degrading treatment or
punishment;
(b)
freedom from slavery or servitude;
(c)
the right to a fair trial; and
(d)
the right to an order of habeas corpus’.
conspicuously
missing from this list is the right to life protected under Article 26(1) and the right to human
dignity as guaranteed by Article 28
of the Constitution. The suggestion given is that the freedom from torture,
cruel, inhuman or degrading treatment or punishment, freedom from slavery and
the right to a fair trial ; and to produce the body are the only truly absolute
rights in Kenya. This further buttresses the notion that the right to life may
be limited by law as demonstrated by Section
297(2) of the Penal code. This provision seems compatible and
consistent in light of Article 24 (2) (c) as can be acquiescent
by the later proviso in Article 25 of
the Constitution. Article 26 (1) (3) states that ‘[e]very person has the right
to life,’ and ‘[a]person shall not be deprived of life intentionally, except
to the extent authorized by this Constitution or other written law.’ It seems
plausible to conclude that as long as the capital punishment as provided under
various sections of the Penal Code are not amended or repealed; the right to
life may be legally deprived and still retains consistency with the
Constitution.
In the instant case, the court is faced with the task of
interpreting one constitutional provision against another, namely the limitation of rights and fundamental
freedoms as against the right to life. There is a well known rule of
interpretation that to take away a right given by a statute, the legislature
must do so in clear terms devoid of any ambiguity. The right to life is not a
super Article. The South African case of State vs. Makwanyane & Anor (1995) ILRC
269 is not a relevant authority to the instant case because
under the South African Constitution, the right to life is unqualified. Under
the Kenyan Constitution on the other hand, the right to life is qualified as
provided for in Article 26 (3). The Death
penalty is, therefore, validated as an exception to Article 26 and as such remains constitutional.
The relevant authority to be relied on is the Nigerian decision in
Kalu
vs. the State (1998)
because the constitutional provisions it considered are in pari materia with our Articles 24 and 26 (3) of our Constitution. Section
30(1) of the Nigerian Constitution provides:-
“Every person has a right to life and no
one shall be deprived intentionally of his life save in execution of a sentence
of a court in respect of a criminal offence of which he has been found guilty
in Nigeria.”
That provision is in pari
materia with our Article 26 (3)
which provide that:-
‘[a]person
shall not be deprived of life intentionally, except to the extent authorized by
this Constitution or other written law.’ It is clear
from the above provisions that the right to life under the Nigerian
Constitution, as our own, is qualified.
The Supreme Court of Nigeria had no difficulty finding that the death penalty
which is expressly recognized in Section
30(1) of their Constitution is constitutional. If the legislature had
intended not to limit the very right it recognized in Article 26 (1) by Article 26
(3) and having freshly in its mind Article
25, it would have endeavored to so in clear terms. It is my humble
submission therefore that this court be persuaded by the force and logic of a
similar court of its stature and find that Section
297 (2) is consistent with Article 24
(1), (2) (c) and 26 (1) (3) of
the Constitution. The Supreme Court of Nigeria followed the Jamaican decisions
in Noel Riley and other vs. Attorney General for Jamaica and Anor (191983)1
AC 719(PC). Earl Pratt and Anor vs. Attorney General for Jamaica and Another
(1994)2 ACI (PC).
Persuasive authorities also to be considered is light of the same
is that of the Bacan Singh vs. State of Punjab (1983) (2) SCR 583 where Article 21 of the Indian Constitution
which is similar to our Article 26 (3)
was considered and the Supreme Court of India held that the right to life under
the Indian Constitution was qualified. In all those circumstances cited, the
death penalty was held to be constitutionally valid.
b.
The Court of Appeal erred in
finding that Section 297 (2) of the Penal Code, Chapter 63, Laws of Kenya is
inconsistent with and contrary to Articles
29 (f) and 25 (a) (c) of the
Constitution of Kenya and Articles 7 of
the International Covenant on Civil and Political Rights.
Article 29 (f) is to the effect that ‘[e]very person has the right to freedom and security of the
person which includes among others the right not to be treated or punished in a
cruel, inhuman or degrading manner.’ Article
25 (a) (c) on the other hand reaffirms
the importance of the right to a fair
trial and expressly stipulates that it is a right that cannot be derogated from under the
Constitution. Article 7 of the
International Covenant on Civil and Political Rights provides that; ‘[N]o
one shall be subjected to torture or to cruel, inhuman or degrading treatment
or punishment. In particular, no one shall be subjected without his free
consent to medical or scientific experimentation.’
The term ‘torture’ was defined by the United Nations
General Assembly in its unanimously adopted ‘Declaration on the Protection of
All Persons from being subjected to Torture and other cruel, inhuman or
Degrading Treatment or Punishment’ of 9 December 1975 .‘Torture
means any act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted by or at the instigation of a public official on a
person for such purpose as obtaining from him or a third person information or
confession, punishing him for an act he has committed or intimidating him or
other persons. Notably it does not include pain or suffering arising only from,
inherent in or accidental to, lawful sanctions’. The court in the decided
decision of Republic v Mbushuu and
another
found that any physical or severe
mental pain or suffering brought about by the death penalty, does not
constitute torture. Learned judges in the Supreme Court decision in the case of
Furman v. Georgia, note: ‘Brennan,
J said at 367 that the State, even as it punishes, must treat its members with
respect for their intrinsic worth as human beings. He warned that
members of the human race should not be treated as non-humans, as objects to be
toyed with and discarded.’ It could be argued that if indeed Section 297 (2) of the Penal Code is found to constitute
cruel, inhuman, and degrading
punishment, it is still licit because capital punishment falls within the scope
of constitutionally permissible limitations of the right as provided for under Article 26 (3) and impliedly by omission
of non-derogatable rights and freedoms as provided for by Article 25 of the Constitution.
It
was stated in Jaga vs. Donges No 1950 USA 653, ‘The often repeated statement that words and
expressions used in a statute must be interpreted according to their ordinary meaning; is the statement that they must be interpreted
in the light of their context. (emphasis
added).’
It
is clear from the above passage that the words in Article 29 (f) must be given their plain meaning and interpreted in the context of the Constitution
in which they are used, but not in abstract. The same should be held in the
backdrop of the intention of the Kenyan people, the spirit of the Constitution
and the very essence of punishing offenders under the criminal justice system. It would be almost
certain to assume that for any effective punishment, some form of pain,
displeasure and discomfort must be
present for it to be considered effective.
Article 26 (3)
recognizes the death penalty in
execution of a sentence passed in a fair trial by a court of competent
jurisdiction in respect of a criminal offence under the laws of Kenya and the conviction and sentence as having been confirmed by the highest appellate court
in Kenya . This is an exception to the enjoyment to the right to life. To that
extent the death penalty is constitutional. Article
29 outlaws any form of torture, cruel, inhuman or degrading treatment or
punishment. The imposing question to answer is whether the framers of our
Constitution intended to take away, by Article
26 (3), the right they recognized in Article
25 and Article 29 (f).
In The State versus T Makwanyane and M Mchunuthe
Constitutional Court of South Africa found the death penalty to be inherently
cruel, inhuman or degrading and, therefore, unconstitutional. It is sagacious
to point that this is a logical consequence given that the right to life under the
Constitution of South Africa is unqualified. This case could be distinguished from the Kenyan
Constitution which qualifies the right to life as discussed in detail above. This
could subsequently mean that the death penalty cannot be viewed as being inherently cruel, inhuman or
degrading and as such Section 297 (2) is proved to be consistent with Article 29 (f) and 25 (a) (c).
In
the alternative and in the unlikely event that this court finds that the death
penalty is inherently cruel and contrary to Article
29 (f) and 25 (a) (c), I pray
that the court takes note of Mbushu and Anor versus the Republic (1995).In this case the Court of Appeal of
Tanzania, found that the death penalty is inherently cruel, inhuman and/or
degrading but declined to declare it unconstitutional. Their reason was that it
was saved by Article 30(2) of their
Constitution. The right to life under the Tanzanian Constitution is appears as
our own, as being a qualified right. It is my humble submission thus that the
Court finds that Section 297 (2) is
consistent with Article 29 (f) and 25 (a) (c).In the alternative, that the
Court finds that Section 297 (2) is
saved by Article 26 (3) of the
Constitution.
Article 50 (6) of the Constitution
offers further protection and safe guards to convicted felons. The provision
gives a convict the right to petition the High Court for a new trial even after
his appeal has been dismissed by the highest court to which an appeal lies. This
article can be seen to further the overriding objective of the civil procedure
rules and offers a continued right to
a
fair hearing as provided for by
Article
50 (1). The requirement of confirmation of conviction and sentence shows
that both conviction and sentence are opened to automatic review on appeal. This
further proves the states intent
and
commitment to uphold
Article 25 (a) (c) of the Constitution. Following
the recent decision of the High Court petition in Nairobi in the case of
John
Swaka v The Director of Public Prosecutions & 2 others Mumbi Ngugi, J, and D S Majanja, J, held that
the requirement for legal representation under
Article 50(2) (h) of the Constitution is subject to the provisions
of
Article 261(1) which provides for
the enactment of legislation to govern a particular matter within the period
specified in the Fifth Schedule. The Fifth Schedule provides that legislation
on fair hearing is to be enacted within four years from the effective date;
that consequently, there is currently no statutory or constitutional duty
imposed on the appellant herein
to
provide legal representation for persons facing capital charges. It should also
be pointed out that the new Constitution does not apply retrospectively. The
Respondent was first tried in April 2010 ,prior to the enforcement of the new
Constitution. It would be contrary to the justice system and in fact the
Constitution
to demand a
retrial of all
cases
based on
the
omission of a
right to representation as effectuated by
Article 50(2) (h) of the current
Constitution. Every case is determined on its
own merits and it would be a subjective test to determine if any prejudice
would be occasioned as a result of this omission. In any event, the
Respondent’s first trial took place under the old constitutional regime and as
indicated before he would not
have been entitled
to free legal representation during his first trials. The Respondent’s prayer
in regard to the same should for that reason be disallowed. It
materializes that this line of reasoning is still unfailing as read with
Article 7(1) (c) of the African Charter
on Human and Peoples Rights which also provides that
'[e]very
individual shall have the right to have his case heard. This comprises the
right to defense, including the right to be defended by counsel of his
choice...’
The
Court of Appeal in David Njoroge Macharia -v- Republic
discussed the issue of substantial injustice and concluded that the right
to legal representation is not an automatic right and must be decided on merit
and on a case by case basis.
Nothing
in Article 94
of the Constitution suggests that legislative arm of government cannot pass a
mandatory sentence for certain offences. The death penalty is acceptable to a
majority of the Kenyan people and evidently justified by Article 109 (1), Article 1
(2) and Article 2 (3) of the
Constitution. This is consequently consistent with the right to a fair trial. Further Article 133 (1) sets out an Advisory
Committee on Prerogative of Mercy to advise the President on when to grant a
pardon or to remit part of the sentence imposed. It is my humble request that
this court does take judicial notice of the fact that the President on the
advice of the committee on prerogative of mercy has previously commuted the
death sentences of all death row convicts prior to 2009 ,to one of life
imprisonment.
c.
The Court of Appeal erred in
finding that Section 297 (2) of the Penal Code, Chapter 63, Laws of Kenya is
inconsistent with and contrary to Article
6 of the International Covenant
on Civil and Political Rights.
Article
6
of the International Covenant on Civil and Political Rights, is binding on
Kenya as from the date of ratification on 1st May 1972. This Article
is in the following terms:
Article 6 (1)
‘[E]very human being has the inherent right to life. This right shall be
protected by law. No one shall be arbitrarily deprived of his life.’
Article 6 (2) ‘[I]n 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 to the Convention on the Prevention and Punishment of the Crime of
Genocide. This penalty can only be carried out pursuant to a final judgment
rendered by a competent court.’
Granted international covenants such as Article 6(1) of the ICCPR, the First
Optional Protocol to the ICCPR, Recognizing Jurisdiction of the Human Rights
Committee and the Second Optional Protocol to the ICCPR, Toward the Abolition
of the Death Penalty are focused on encouraging
member states to do away with the
death penalty, or to reserve the penalty for the most serious crimes. Of course
what each state regards as most serious crime is left for its discretion.
The Kenyan people through
Article 26 (3) of the Constitution
permit the death penalty though not expressly ‘to
the extent authorized by this Constitution or
other written law.’ The death penalty has legally been provided for in
the Penal Code for the offence of robbery with violence, and this provision
accords with the provisions of
Article 26
(3). It is a general
consensus
that the law making authority under our
Constitution is vested in
under
Article 94 (1), in the National
Assembly, and as also provided for in the same Constitution at
Article 2 (2) which therefore requires this
appellate court to exercises authority only
‘as authorized by this Constitution.’ It is
consequently not the role of this Court to usurp the authority of the legislature and
alter the express proviso which clearly makes
parliaments intention known.
Section 297 (2)uses
the strongest words to make obvious parliaments intention
‘shall be put to death’. This
may be
viewed as imposing on judges a
mandatory obligation resulting in the passing of a death penalty if finding of
guilt is entered.
It remains the
constitutional mandate and province of the legislature to make any such
amendments as it deems fit to any law and
in particular to the circumstances under which the death penalty should be
imposed or limited in cases of robbery
with violence. It seems clear that the Kenyan courts do not arbitrarily pass
the death penalty. It is in fact true that there are limited instances where
the death penalty is provided for under the Penal Code as the mandatory form of
punishment; all of the instances which qualify as reasonable due to the gravity of the offenses. It as a result can be seen that the
punishment sanctioned by law is reasonable and is in reality a justifiable means towards an end.
d.
The Court of Appeal erred in
finding that Section 297 (2) of the Penal Code, Chapter 63, Laws of Kenya is
inconsistent with and contrary to Article
28 of the Constitution.
Article 28 reads as follows;
‘[e]very person has inherent dignity and the right to have that dignity
respected and protected’. As previously stated above ,Article 25
of the Constitution lists the rights and freedoms that may not be limited despite any other
provision as provided in the Constitution and in any other law. It is curious
to note that the right to inherent dignity is not qualified and as such means
that the same can be deemed to be a limited right by virtue of Section 297 (2) of the penal code
therefore not unconstitutional.
In
Catholic
Commission for Justice and Peace in Zimbabwe vs. Attorney General and Others, the supreme court agreed that
the petitioners’ 5 years delay on the death row, in demeaning physical
conditions, since the pronouncement of their sentences, went beyond what was
constitutionally permissible. The delay caused prolonged mental suffering and
was inordinate when compared with the average length of delay in carrying out
execution in Zimbabwe. In addition, the privy council in Earl Pratt and Morgan vs.
Attorney General of Jamaica and others
stated that for Jamaica where there is only one appeal step, a
protracted appeal process beyond two years was tending towards unreasonable
delay. If there was inordinate delay in executing the sentence of death, the
condemned prisoners, had the right to come to court to examine whether, owing
to the delay, the sentence of death should be carried out. It is my considered
view that this ground for determination is premature as can be distinguished
from the above case where warrants for the petitioners’ execution had already
been issued. In the case at hand, no such a warrant has been issued yet and it
can therefore be concluded that the Respondent’s right to human dignity still
persists. The Appellate reaffirms its commitment towards the progressive
realization of the establishment of an official moratorium on executions, in
line with United Nations General Assembly resolutions
and the African Commission on Human and Peoples’ Rights resolution calling on
state parties to the African Charter on Human and Peoples’ Rights to observe
the moratorium on the death penalty.
Section 15(1)
of the Zimbabwean Constitution is in pari materia with Article 28 of our constitution. Condemned prisoners do not lose all
their constitutional rights and freedoms, except those rights and freedoms that
have inevitably been removed from them by law, either expressly or by
necessary implication. The Court of Appeal in Uganda in
Susan Kigula & 416 othersstated
in its judgment that the death sentence is recognized under
Article 22(1) of the Constitution of
Uganda and is therefore constitutional. The court went on further to state that
the condemned prisoners are still entitled to the protection of
Articles 24 and
44(a) of the Constitution in respect of their treatment while they
are in confinement before execution.
In conclusion
therefore it is my submission that Section
297 (2) is consistent with Article 28
of the Constitution in so far as the warrant for the Respondent’s execution has
not already been issued. In any event, the right is derogatable in the necessary
instance of effectuating an execution of a court order duly passed.
CONCLUSION
This court is
empowered by the Criminal Procedure Act Chapter
21,order 42 rule 32 to pass any decree and make any order which ought to
have been passed or made or make such further or other decree as this
particular case may require. This power may be
exercised in favor of either of the parties to the suit.
In lieu of the forgoing ,the Appellate humbly prays
the following before this honorable court:
(i) A
declaration that the Court of Appeal erred in finding that Section 297 (2) of the Penal Code, Chapter 63, Laws of Kenya is
inconsistent with and contrary to Articles
24 (1); 24 (2) (c) and 26 (1) (3) of the Constitution of Kenya; and an affirmative declaration to that the death
penalty is Constitutional.
(ii) A declaration that the Court of Appeal erred in finding that Section
297 (2) of the Penal Code, Chapter 63, Laws of Kenya is inconsistent with
and contrary to Articles 29 (f) and 25
(a) (c) of the Constitution of
Kenya and Articles 7 of the
International Covenant on Civil and Political Rights; and a further
pronouncement that the right to life is qualified under the Constitution of
Kenya.
(iii) A declaration that the Court of Appeal erred in finding that Section
297 (2) of the Penal Code, Chapter 63, Laws of Kenya is inconsistent with
and contrary to Article 6 of the International Covenant on Civil
and Political Rights and that a prescribed mandatory sentence does not infringe
upon the doctrine of separation of powers.
(iv) A declaration that the Court of Appeal erred in finding that Section
297 (2) of the Penal Code, Chapter 63, Laws of Kenya is inconsistent with
and contrary to Article 28 of the
Constitution and a supplementary declaration that this right is to be view in
light of the continuous constitutional
interpretation of the Kenyan Constitution.
Kenya notably refused to vote for a UN resolution calling for the abolition of
the death penalty during the 58th session of the UN Commission on Human Rights.
Constitutional
Court of the Republic of South Africa Cct/3/94
[2013] eKLR Constitutional Petition 318 of 2011
Criminal
Appeal No. 497 of 2007[2011] eKLR
(ACHPR/Res.136(XXXXIIII).08)Constitutional Petition No 6 of 2003
