Justice Jessie Lesiit handed 24-year-old Ruth Kamande a death sentence on Thursday. The judgement plunges Kenya backwards into the company of a small number of countries still using the death penalty. The sentence offends our Bill of Rights and directly challenges our national values.
Three years ago, the 21-year-old Ruth stabbed Farid Mohamed 25 times with a knife in a crime of jealousy and anger. She argued in defense that he had sex with her knowing he was HIV positive after cheating on her with other women. Despite being a first-time offender and while being remanded has shown evidence of good behavior, adoption of the Islamic faith and undertaking a university degree course in information technology, Ruth was sentenced to death.
Punishment by death has existed in very limited cases in African culture. Kisii, Turkana and Luhya communities were known to kill magicians and sorcerers. The Maasai reserved this treatment only for people who killed other Maasai. The Gikuyu were known to roll murderers and adulterers down slopes in barrels of bees until they died. It was only in 1893 that the mass practice of punishment was introduced to protect the colonial state.
Over the next sixty years, the colonial state hung 459 people. Like American slavery, hangings were organised to protect white European women from rape by black African men. The real wrath of the colonial state was however reserved for treason. Between 1952-1956, the colonial state killed one man or women every day in their attempt to defeat the Kenya Land and Freedom Army and the mau mau
It is now thirty-one years since 1982 coup plotters Hezikiah Ochuka and Oteyo Okumu were found guilty of treason and hung. Until last year, our courts have preferred mandatory death sentences for attempting or committing robbery with violence, murder and acts of treason. For a decade now, the Executive has progressively reduced these sentences. In 2009 and 2016 Presidents Kibaki and Kenyatta commuted 6,747 sentences to life imprisonment. Their actions were consistent with our Bill of Rights and international standards that question the use of the death penalty.
There are at least three reasons why the precedence set by Thursday’s judgement should offend us. The right to a fair trial and re-trial is an important pillar of our constitution. Weak forensic capacities, unreliable police investigations and the ease at which our judicial system can be compromised is another reason that we should oppose the general use of the death penalty. It is simply too final. In the case of Ruth Kamande, there are other considerations. She was young, extremely disturbed by the fear and anger of being infected by HIV/AIDS and has since demonstrated good behavior and a willingness to reform while in custody.
A small number of countries including the United States of America, China, Saudi Arabia and Pakistan still apply the death penalty. The USA has legally executed more men and women than the entire African continent. For two thirds of the world however, the “eye for an eye” argument no longer holds. Imprisonment and corrective rehabilitation has proved more effective in reducing criminality and violence than more violence by the state. These countries have moved to abolish the death penalty.
Last year, the Supreme Court struck down mandatory death penalty sentencing but ruled that the death penalty was still lawful. A taskforce on the Implementation of the Supreme Court Ruling on the Death Penalty is currently consulting the public on whether to review the sentence altogether. Ruth Kamande has fourteen days to appeal the ruling. If the ruling is upheld and she is committed, the Presidency should commute her sentence and support her to continue the course of rehabilitation she has embarked on. That Ruth killed Farid, his family still grieves and justice must be served, is not in question. What is in question is the use of the death penalty. It is simply a cruel, outdated and ineffective law to deal with violent crimes or treason.
I was twenty-nine when the dictatorial Nigerian President Sani Abacha hung environmental activist and writer Ken Saro Wiwa. I still vividly remember the anger of Africa and the Commonwealth at the time. It is more than twenty years since that sad moment. It is now time Muthoni Njau-Kimani’s Taskforce guides our nation to take the death penalty off our statutes and abolish its use.
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First published Sunday Standard, July 21, 2018. Kindly reproduced here with permission from the Standard Group
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