state of civil and political rights: Partly free
constitution: 27 August 2010
legal system: mixed legal system of English common law, Islamic law, and customary law
legislative system: the constitution changes the legislature to a bicameral parliament consisting of a 290 member National Assembly and a 94 member Senate; parliament members will serve five year terms
judicial system: Supreme Court, Court of Appeals, and High Court, and three subordinate courts consisting of Magistrate courts, Kadhis courts (sentences according to Muslim law), and Courts Martial
religion: Protestant 45%, Roman Catholic 33%, Muslim 10%, indigenous beliefs 10%, other 2%
death row: 130, according the daily The Star, as October 2017
year of last executions: 0-0-1987
death sentences: 21
international treaties on human rights and the death penalty:
International Covenant on Civil and Political Rights
Convention on the Rights of the Child
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Statute of the International Criminal Court (which excludes the death penalty)
Murder, treason and armed robbery are capital crimes. Courts in Kenya apply the death penalty to violent robberies with particular rigour.
Judges, not juries, pass death sentences.
In July 2010, the Court of Appeal declared unconstitutional the mandatory death sentence for murder. However, Kenyan courts continue to apply the death penalty to violent robberies with particular rigour.
In August 2012, the scope of the death penalty was expanded with the signature by then President Mwai Kibaki of the Kenya Defence Forces Act.
The last hanging in Kenya took place in 1987, when August 1982 coup plotters Hezekiah Ochuka and Pancras Oteyo Okumu were executed following a court-martial ruling.
In July 2012, the UN Human Rights Committee expressed regret that the death penalty applied to crimes such as robbery with violence that did not qualify as most serious crimes within the meaning of Article 6(2) of the ICCPR. The Committee recommended to abolish the death penalty and accede to the Second Optional Protocol to the ICCPR. It suggested that the state should intensify public awareness campaigns against the death penalty.
In June 2015, MP John Waiganjo presented two draft Bills whose enactment would result in the repeal of the death sentence from the Penal Code and the Criminal Procedure Code. Waiganjo argued that having the death sentence in the law was contrary to the Bill of Rights in the Constitution.
On 24 September 2016, the High Court ruled that the mandatory death sentence in relation to capital offence is unconstitutional. A petition was filed by Wilson Kinyua and 11 other death row prisoners serving their sentences at Kamiti Maximum Security Prison, challenging conflicting sentences given to similar offences resulting in a breach of their right to be treated equally. In a landmark judgement, it was ruled that sections of the law do not meet the constitutional threshold of setting out precise and distinct differentiating degrees of aggravation of the offence of robbery and attempted robbery to adequately answer to charges and to prepare a defence. The petitioners, led by Wilson, argued that for the death sentence to apply one should first have the opportunity to defend oneself following the case hearing through the process of mitigation. The favourable ruling means that mitigating factors and other pre-sentencing requirements have to be received and considered by the courts in order for a fair trial to take place – abolishing the mandatory death sentence currently prescribed for a capital offence. The court, however, did not rule in favour of the abolition of the death sentence across the board stating that “the death sentence is not a cruel, inhuman and degrading punishment. However, it just cannot be meted to any person convicted of a capital offence.” This was clearly a disappointing outcome for Wilson, however, extraordinary steps have been made to change the law in such a way that the positive impact will be felt throughout the prison community. The judgement has also been suspended for 18 months in order for the law to be reviewed for the inconsistencies found and amended accordingly.
On 24 October 2016, President Uhuru Kenyatta commuted all death sentences into life jail terms. Some 2,747 death row inmates, including 2,655 male convicts and 92 female convicts, were removed from the death row to serve life sentences. The last commutation of death sentences to life imprisonment was done in 2009 by the then President Mwai Kibaki. Invoking the Power of Mercy provided for under Article 133 of the Constitution, President Kenyatta also signed a pardon warrant and released 102 long-term serving convicts after a thorough vetting by the Power of Mercy Advisory Committee.
In November 2016, a delegation of Hands Off Cain led a mission, in the framework of a project supported by the Italian Minister for Foreign Affairs, to Kenya with the aim to convince the country to vote in favor of the UNGA Resolution for a moratorium on executions. The delegation, led by Antonio Stango (member of the association's Executive Board, and president of the Italian League for Human Rights), was also composed by Eleonora Mongelli, Yuliya Vassilyeva and Raphaël Chenuil-Hazan (Vice President of the World Coalition against the Death Penalty ). In Nairobi, the delegation met, thanks to Stefano Dejak, head of the EU delegation, the Attorney General - that in Kenya also performs functions of Minister of Justice - Githu Muigai. Personally very convinced of the futility of the death penalty and decided to accelerate the process of abolition, he said he would recommend to the Minister of Foreign Affairs the vote in favor of the resolution for the moratorium to the UN General Assembly. The delegation also met with two members of parliament, Hon. Agostinho Neto, and John Muriithi Waiganjo (one of the ruling party and the other of the opposition, but both supporters of the abolition of the death and in favor of voting on the Resolution) and the Executive Director of the Kenyan Section of the International Commission of Jurists.
In 2016, at least 24 people were sentenced to death according Amnesty International and there were two death row inmates at the end of the year.
The death penalty on women
According to the Penal Code (secs. 211-212), pregnant women may not be sentenced to death. When a woman convicted of a death eligible offense is found to be pregnant “the sentence to be passed on her shall be a sentence of imprisonment for life instead of sentence of death.”
On 22 January 2015, Kenya was reviewed under the Universal Periodic Review of the UN Human Rights Council. The Government accepted the recommendation to establish a moratorium on executions with a view to abolishing the death penalty for all crimes. However, the recommendation to abolish capital punishment and ratify the Second Optional Protocol to the International Covenant on Civil and Political Rights did not enjoy the support of Kenya that requested for support towards human rights awareness campaigns, including the abolition of the death penalty.
On 19 December 2016, Kenya abstained again on the Resolution for a Moratorium on the Use of the Death Penalty at the UN General Assembly.