According to a report in the Daily Nation on July 6, a Mombasa-based magistrate Lilian Mutende told the Judicial Services Commission (a constitutionally-mandated independent body that vets judicial candidates, among other tasks) that the death penalty "dehumanizes people" and was "unconstitutional" rather than discretionary. Mutende's interview with the Commission was part of a very large vetting process for High Court vacancies as part of the new constitution's judicial independence efforts. Twenty-six candidates for High Court slots will be selected from a pool of 115 (of which Mutende was one).
Mutende's comment that the death penalty was unconstitutional is, according to the article, based on an interpretation of Article 26 as circular, as I have mentioned earlier on this blog. In other words, Article 26 permits violation of the right to life when authorized by the constitution "or other written law" (which presumably must comply with the constitution) but then provides no authorization except for abortion where the mother's life is in danger. I believe her interpretation of Article 26 is correct, particularly as the Article was specifically designed to be more ambiguous than the prior constitution's authorization for the death penalty. I also think her views are representative of a large segment of Kenya's political elite, which is unusual in many African countries, but similar to countries such as Zambia, Zimbabwe, and probably Tanzania.
It is also interesting to note that Mutende is not the only candidate calling for abolition of the death penalty. According to an August 4 Daily Nation article, three additional candidates for High Court positions - two magistrates and a lawyer - also told the Commission that the death penalty violates Article 26 of the new Kenyan constitution.
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