Kenya: High Court judge finds death penalty unconstitutional

A High Court judge sitting in Nakuru, Anyara Emukule (who was recently in the papers for clearing for burial the body of the Kenyan Olympian who was killed under unusual circumstances a few weeks ago) has found the death penalty to be incompatible with Kenya's new constitution.  He sentenced John Kimita to 30 years in prison with the option of parole after twenty years.  Judge Emukule already had the discretion to substitute a lesser sentence after Mutiso v. Republic, which invalidated the mandatory death penalty provision at Section 204 of the Penal Code last July, so it is unclear whether the decision would be appealed and whether Judge Emukule's holding had alternate grounds.

The argument against the constitutionality of the death penalty in Kenya would rest on how the new clause is drafted.  I suspect that the ambiguity of the new clause is intentional, because Kenya has a wide gap between the attitudes of the political elites and of the general population toward capital punishment.  This is the result.

The death penalty under the old constitution was clearly saved:

71(1) No person shall be deprived of his life intentionally save in execution of the sentence of a court in respect of a criminal offence under the law of Kenya of which he has been convicted.

The right to life clause of the new constitution is more ambiguous:

26(1) Every person has the right to life.
26(2) The life of a person begins at conception.
26(3) A person shall not be deprived of life intentionally, except to the extent authorized by this constitution or other written law.
26(4) Abortion is not permitted [with exceptions].

There are two ambiguities here.  One is that the clause that would "save" the death penalty, 26(3), is not a claw-back exception to 26(1) as it was in the former constitution.  From a statutory interpretation viewpoint, they are different subsections to the same right to life provision, and consequently, a judge has to reconcile any inconsistency between them (keeping in mind that, from a constitutional interpretation standpoint, a judge should not resolve any inconsistency such that one clause is meaningless unless it is unavoidable).  Judge Emukule could well have read Section 26(3) as not saving the death penalty because to do so would be consistent with 26(1), and 26(3) did not require saving the death penalty as under the old constitution.

The other difference between the two constitutions, of course, is that under the new constitution, the "right to life" provision contains no exceptions (or at least, prohibits deprivation of the right to life unless it is consistent with other clauses of the constitution, i.e., the abortion clauses).

It would be difficult to imagine that this decision will stick.  But Judge Emukule definitely noted an intentional constitutional ambiguity, and his method of resolving it accords with principles of constitutional interpretation.

For the Nairobi Star article, click here.
For a staff editorial by the Nairobi Star supporting the decision, click here.
For the Daily Nation article, click here.