DEATH PENALTY IN KENYA- IS THERE AN ALTERNATIVE
“Many that live deserve death. and some that die deserve life. Can you give it to them? Then do not be too eager to deal out death in judgement.” John Tolkien, an English writer and philologist famous for high fantasy works including the Hobbit and the Lord of the Rings once observed.
A real life story is told of a Mafioso gang leader called Lucky Luciano who in the early morning on October 5th, 1931 almost got killed when his car laden with six dynamite explosives, set by a hired guy called murphy. Murphy’s mistake was the use of excess explosives because the blast flung car upside down and Luciano miraculously survived. After recuperation and in a bitter rage for retaliation, he sent his troops to get Murphy and used an exact dosage of explosives on Murphy who had been strapped on a chair in an abandoned building. Murphy was shredded into smithereens.
Luciano survived and I always wondered what would have happened if Murphy survived and both were charged with capital offences. What options would the jury have for both of them?
In the course of my work, I have been involved in a number of projects addressing the Death penalty question. I have been in rooms with charged antagonists and proponents for the same and each opportunity is a revelation. I once had an opportunity to be on a working tour across the country and sat in about 35 County meetings listening to the debate. My conclusion at this point is that the Death Penalty is a practiced by human beings who have gotten to a point of desperation to sort the most violent crimes and need closure, rather than as a deterrent for the crime. I know this might attract applause and condemnation to myself on equal measure.
Why do people commit capital offences? Once we can answer this question, then we can be in a position to diagnose and prescribe the best panacea for this social vice.
Human beings behavior according to various proponents is consolidated by either nature or nurture. Nature in the sense that human beings genetically are predisposed and nurture in the sense that human beings learn behavior depending on the environment they are in.
So do criminals come to this world with inborn criminal traits, inherited from parents, biological factors such as extra chromosomes or excess energy levels? Can there be an argument that the most violent criminals learn bad behavior from those close to them, siblings, movie heroes etc.?
Regardless of how the behavior was acquired, let us examine how the Kenyan criminal justice system in its entirety applies itself to deal with the menace. The first cog in the system is the common person in society, the sibling, neighbor, law enforcement officer and the average person. This becomes the complainant or the witness for a crime committed by the suspect. The first reaction is always to take the matter into their own hand in two ways, summarily deal with the culprit through mob justice and condemn the suspect to death through beating, burning or any other possible way to kill. That is still a way of applying the death penalty emanating from bitterness from a past-related event; fear that if such a person continues to live, one might become a victim in future or plainly as a societal way of dealing with crime. The second way is to engage the second level cog, law enforcement and resign to the fate of the law of the land.
In a panic mode and eager to ‘’earn their bread,’’ the police would affect the arrests and ensure that the suspects are arrested and quickly dispensed to the next and third cog level. After all the police would argue that, ‘’utasemea mbele’’ meaning, worry not, we come in peace, you will explain to the judge. Nevertheless, do the police have an option? Of course, yes, because they can easily end the matter by summarily assuming the role of the jury and quickly shoot down the suspects- a form of death penalty.
The judiciary is given the tough job of walking back to the crime scene path, listen to the family of the complainant if any, the defendant(s), witnesses, prosecutors, the society, the state as the employer and more important, the loud voice of the law. In Kenya, this is the center stage of the whole matter. I once spoke to a few judges on the same matter and their story seemed to come from the same script. A month or so before the judgment, they rehearse dreading the fateful day and once the day comes, they hurriedly read the judgement in hushed tones and quickly take off on a long leave. Their bodies drench in a mix of guilty- for taking away a life they never created and satisfaction for ticking a box and doing the ‘’lords work.’’ Do they have options? They can release, given a lighter sentence and or acquit.
The interesting thing is some of the convicts appeal and are released for either because of mistrial, lack of evidence or clearly a case of mistaken identity.
A few years ago, the Power of Mercy Advisory (POMAC) in concert with other key institutions in Kenya organized nationwide County hearings to listen keenly to the three important cogs and see how they interpret this issue of death penalty in Kenya. This is the chance I had to listen to countless voices across the country and just concluded how complex and simple at the same time the narrative of the death penalty is. The topic for discussion across all the counties was, ‘’to abolish or retain?’’
These county hearings had been necessitated by the governments open declaration that it did not have problem abolishing the death penalty but the civilians had to be consulted through an empirical study. The then president, Mwai Kibaki cited continued overstay in death row as a creation of another societal problem in prisons. In a 2009 historical move, he commuted the sentences of over 4,000 convicts from death row to alternative sentences.
The empirical study, led by POMAC was to hold the 47th and final hearing in Nairobi City County but apparently, this and the final report disappeared into the thin air, as far as I am concerned. If anyone has a copy of the final report and verdict, I will gladly want a copy, at a fee or for free.
Kenya cannot continue dipping its head in sand like the proverbial case of the ostrich and expect that the case of death penalty will just wish itself away. We must confront the elephant in the room and adopt a more modern, sober and intelligent way of dealing with the death penalty question. I in no way support violent crimes, after all, I have been a victim of the same before, and I come in peace.
Can there be an alternative to death penalty?
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