Alexandria Tsamis

Abstract:

Despite major strides, the death penalty continues to be a legal sentencing option in Kenya. In 2017, the Supreme Court’s ruling in the landmark case of Muruatetu & Another v. Republic made the mandatory death penalty unconstitutional in Kenya. This decision overruled a Court of Appeals decision in a previous case (Mwaura & 2 Others v. Republic), and it overhauled the sentencing guidelines for offenses that formerly required mandatory capital punishment upon conviction. The Court ruled that the death penalty in general, however, was not unconstitutional. As such, this punishment is still a viable sentencing option for those convicted of treason, murder, and robbery involving violence. Relying on reports of current practices and policies, current court cases, the Kenyan Constitution, and other sources, I will discuss three different avenues that can be utilized to stop the use of the death penalty: presidential commutations, judge-made law, and making an amendment to the Constitution or Kenyan Penal Code. Of these available options, I argue that making an amendment to the Constitution or Penal Code is the most practical solution, although divided public opinion may make accomplishing this task easier said than done.