Kenyan court finds mandatory death sentence unconstitutional

The High Court in Kenya has ruled that the mandatory death sentence in relation to capital offence is unconstitutional.

A petition was filed by APP law student, 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 delivered on 15 September 2016, 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 et al, 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, a ruling that the petitioners wish to challenge, calling for an immediate resolution to their cases.

Wilson Kinyua

In 1998 Wilson was arrested for robbery with violence. He was convicted a year later and sentenced to death at the age of 19.

Wilson exhausted appeals against his conviction without success, but with his high-school qualifications he took it upon himself to assist other prisoners with preparing simple court applications such as bail and notices of appeal.

Through an APP sponsored scholarship with the University of London, Wilson gained a Diploma in Common Law and is now studying for his LLB law degree. The opportunity to study law has made a considerable impact on his ability to navigate the legal system and the confidence to stand up in court and argue his case effectively, contributing to the favourable outcome.

The original petition was filed in 2010 and was immediately dismissed without a hearing. Wilson experienced many other setbacks to the case over the past years, however, the declarations made by the court on 15 September are testament to the determination and perseverance Wilson and the 11 other prisoners have shown throughout, and that with such courage, extraordinary things can be achieved.

African Prisons Project are proud to see people in prison empowered to transform their communities and we hope that people like Wilson will continue to persevere, to drive positive change and to inspire entire nations.