Kenya: Why hasn’t Kenya abolished the death penalty? Habit and inertia

In recent months, two African states have announced their intention to abolish the death penalty: Zambia and the Central African Republic.

A total of 22 member countries of the African Union (AU) have abolished the death penalty for all crimes, and one for ordinary crimes. In 2021, only four AU countries carried out executions: Botswana, Egypt, Somalia and South Sudan.

Seventeen African countries are considered “de facto abolitionist” states, meaning that they have not carried out any executions for 10 years. These include Kenya, which retains the death penalty by hanging – a British colonial relic. This sentence can be imposed for the crimes of murder, other offenses causing death, theft not causing death and treason. Kenya has not carried out an execution since 1987, when Hezekiah Ochuka and Pancras Oteyo Okumu were executed for their role in the failed attempt to overthrow President Daniel arap Moi in 1982.

After 35 years without executions, why hasn’t the law been abolished? Based on our research and legal expertise, we believe that Kenya maintains the death penalty out of habit, convenience and sheer inertia rather than evidence-based consideration of its effectiveness or popularity.

Our recent survey revealed that Kenyans’ knowledge of the death penalty is relatively limited. Only 66% of the population know that the country maintains the death penalty. Only 21% know that no executions have taken place in 35 years. Most years, more than 100 people are sentenced to death, mostly for murder or robbery.

Another factor that may contribute to government inertia is that the death row population is managed through regular mass switches. The death sentences of 4,000 prisoners were commuted in 2009 under President Mwai Kibaki. And in 2016, another 2,747 under President Uhuru Kenyatta.

But executions could resume as long as the law remains in force. This is why our expert view is that it is important to push for abolition. It would bring psychological relief to those living in the shadow of death. Indeed, international jurisprudence suggests that long periods on death row – known as the “death row phenomenon” – constitute cruel, inhuman or degrading punishment.

Latest research by The Death Penalty Project, Oxford University and Kenya’s National Human Rights Commission suggests that Kenyan opinion makers are in favor of abolition and that public opinion is n does not prevent it. So, alongside legal or legislative reform, there should be civil society engagement and community action at the local level, bringing the public along the way.

The death penalty in Kenya explained

Efforts have been made to restrict the scope and application of capital punishment. In 2017, the Supreme Court of Kenya declared the mandatory death penalty for murder unconstitutional. This introduced judicial discretion as to whether the death penalty should be imposed. Execution was set as the maximum sentence, but not the only one.

The courts are still handing down death sentences. At the end of 2021, 601 people were on death row and 14 death sentences had been handed down that year.

Governments that continue to apply the death penalty generally claim that their citizens support it. Kenya’s leaders are no exception. In 2007 and 2015, the Kenyan parliament voted against abolishing the death penalty (when bills were initiated by individual lawmakers, but voted down by parliament). The justification given was public support for the detention. Kenyan delegates told a UN committee in 2013 that abolition was “not supported by the will of the Kenyan people”.

Our rigorous research suggests that is not the case.

Public opinion is not an obstacle to abolition

Our public opinion research interviewed a representative sample of 1,672 Kenyans. We found that a small majority (51%) supported retaining the death penalty. Just under a third were strongly in favor of retention.

This is a lower level of support than other de facto abolitionist African countries. In Zimbabwe, for example, our research found that 61% of the public favored retention.

Our research also showed that in Kenya, support for the death penalty in specific (realistic) scenario cases was lower than support in the abstract. For example, it fell to 32% for robberies resulting in death and 27% for murders.

We also surveyed 42 opinion formers, including people who have jurisdiction over the criminal justice system or who may be seen to influence public opinion, and found very high levels of support for abolition (90 %), the vast majority being strongly in favor of it.

This represents the highest level of support for abolition of any survey of opinion makers conducted by The Death Penalty Project. In Kenya, opinion makers cited concerns about wrongful convictions as a reason to favor abolition, but also saw the death penalty as a violation of human rights.

The paths to abolition

The majority of those who initially favored retention said they would accept abolition if it became the policy of the Kenyan government. Similarly, almost all opinion makers said they would actively support an Act of Parliament to abolish the death penalty.

Historically, there have been different paths to abolition in Africa. In Rwanda, the death penalty was abolished after the end of a repressive regime. In Sierra Leone, the president led a campaign that resulted in a vote in parliament. In South Africa, the country’s post-apartheid constitution paved the way for the court to ban the death penalty. It recognized the right not to be “subjected to cruel, inhuman or degrading treatment or punishment”.

The strategy favored by Kenyan opinion makers was to amend the criminal law. But it was also suggested that it would be necessary to apply several strategies simultaneously. The local approach would include actions by the courts, churches and the president. Another way would be to put pressure on Kenya to sign the international protocol on the abolition of the death penalty.

Whichever path Kenya takes, our research suggests that opinion makers will actively promote and even help facilitate abolition. And the public will not oppose the abolition of a penalty that has clearly disappeared in practice.

Carolyn Hoyle, Director of the University of Oxford Death Penalty Research Unit, Center for Criminology, Faculty of Law, University of Oxford

Lucy Harry, Postdoctoral Researcher, Death Penalty Research Unit (DPRU), University of Oxford

Parvais Jabbar, co-founder and co-executive director of the Death Penalty Project, University of Oxford

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