Death penalty for murder, armed robbery,[28] treason. On 3 August 2009, the death sentences of all 4,000 death row inmates were commuted to life imprisonment, and government studies were ordered to determine if the death penalty has any impact on crime

Mandatory death sentence ‘unconstitutional’ in Kenya

December 14, 2017


Kenya’s Supreme Court on Thursday declared the mandatory death sentence in the East African country as “unconstitutional”.

In a ruling, the Supreme Court’s judge Njoki Ndungu said a law regarding mandatory death penalty is “inconsistent” with the constitution of Kenya.

He was referring to Section 204 of the Penal Code, which states that that anyone found guilty of committing murder, treason and armed robbery shall be sentenced to death.

While abolishing the mandatory death penalty, Ndungu said: “The mandatory nature of the death sentence as provided under Section 204 of the Penal Code, is hereby declared unconstitutional.”

The ruling by the top court in Kenya came after Wilson Mwangi and Francis Karioko both death row convicts filed a petition to the court questioning the legality of the mandatory death penalty for the crimes such as murder, treason and armed robbery.

Meanwhile, Oluwatosin Popoola, Amnesty International’s adviser on the death penalty, appreciated the judgment.

“This landmark judgment is a significant step towards complete abolition of the ultimate cruel and inhumane form of punishment,” Popoola said.

“It’s now time for the Kenyan authorities to take the required legal steps to abolish the death penalty fully and join the 105 countries that have completely consigned the punishment to history.”

No person has been executed in Kenya since 1987 despite many being handed the death penalties.


KENYA – David and Judith Tebbutt: Kenya imposes death sentence

A Kenya court has sentenced a former hotel worker to death after convicting him of being in a gang which murdered a British tourist and abducted his wife.

Judith Tebbutt, of Hertfordshire, was held for six months in Somalia after pirates shot her husband David in 2011.

The Met Police, which helped the Kenyan probe, said Ali Babitu Kololo, 27, was found guilty of robbery with violence.

Kenya has not carried out a death sentence since 1987, and Kololo is expected to serve a prison sentence.

He had been sacked from his job at the resort several months before he guided the kidnappers to the Tebbutts’ villa at the remote resort on an island in Kenya’s Lamu archipelago.

He pleaded not guilty at his trial held in the town of Lamu, and said he had been acting under duress.

The Met Police said a small team of counter-terrorism officers travelled to Kenya shortly after the murder and kidnap to support the local police investigation.

The investigation matched footprints found on the beach to the shoes worn by Kololo when he was arrested shortly after the incident.

The Foreign Office confirmed the death penalty had been imposed, but said it was not expected to be carried out because of a moratorium in place since 1987.

A spokesman said: “We welcome efforts by the Kenyan authorities to bring those responsible for the kidnap of Judith Tebbutt and the murder of her husband, David, to justice.

“Today’s news that Ali Babitu Kololo has been found guilty of robbery with violence is a positive development, but the wider Kenya investigations continue.”

Writing on Twitter, the UK ambassador to Somalia, Neil Wigan, said: “Welcome conviction in Lamu today of Kololo for his role in Tebbutt kidnap and murder.”

The Tebbutts, from Bishop’s Stortford, travelled to the resort, close to the Somalia border, after visiting the Masai Mara game reserve.

In an interview with the BBC last week, Mrs Tebbutt, 58, said she felt uncomfortable after arriving at the beach resort for a two-week stay as she and her publisher husband were the only guests.

She was awoken by the sounds of her husband struggling with someone in the dark. Then she was jabbed with the barrel of a rifle and dragged down to the beach.

She revealed after her release she remained unaware that the gang had killed her husband for two weeks after she was kidnapped.

Her release came after her family reportedly paid a ransom. (BBC News)

Kenyan prisoners take the law into their own hands

In Kenya, prisoners are taking the law into their own hands and using it to get out of jail. “Last week Abdi’s sentence was reduced from death to seven years. We also helped another inmate win his appeal, and he has already left,” says Douglas Owiyo, one of a team of prisoner paralegals at Shimo La Tewa maximum security prison in Mombasa.

Since 2007, when he and a dozen other inmates were trained in the law, they have launched more than 3,000 successful appeals, even though they are not fully qualified lawyers

Abdi Moka was one of these.

When he found himself before a judge facing a charge of robbery with violence, he had no idea what to plead or how to defend himself.

Robbery with violence carries a mandatory death sentence in Kenya, and before he knew what was happening, Moka was on death row.

Owiyo and the other prisoner paralegals drafted a written submission which Moka presented at his appeal. They won.

The appeal judge agreed that Moka should have been charged with a lesser crime and given a much lighter sentence.

“When I was sentenced to death I thought I would lose my mind,” Moka remembers.

“But now, thanks to the paralegals, I have hope again.”

‘Intelligent questions’ Mombasa’s chief magistrate, Stephen Riech, admits that the lack of legal representation for defendants leads to injustice.

“There is a lot of it because, for instance, if someone is charged with being in possession of a weapon with intent to steal, he may say: ‘Yes, I was found in possession of a weapon,’ and admit [that].

“But the catch is he had no intention of stealing. If he knew some basics he could not have done that.”

He says the impact of the prisoner paralegals can really be seen when defendants come to court.

“Once they have exposure to the paralegals they know their rights,” he says.

“They ask for the statements of the witnesses, they sometimes ask for adjournments so they can prepare their defence.

“I can see them asking intelligent questions to the witnesses who are testifying against them.

“Some even make submissions on points of law, which to my mind is a great improvement.”

The organisation responsible for the training of prisoner paralegals in Kenya is Kituo Cha Sheria.

Set up in 1973 by a group of Kenyan lawyers concerned by the lack of legal help available to the poor, Kituo Cha Sheria has now evolved into a multi-faceted legal aid and advocacy group.

It campaigns on issues such as abolishing the death penalty, which is still in place in Kenya, although no-one has been executed since 1987.

Following the success of the original prisoner paralegal training in Mombasa, Kituo Cha Sheria has now trained teams in Kamiti Maximum Security Prison and Langata Women’s Prison in the capital, Nairobi.

Lifer Joseph Karanja, who heads the paralegals at Kamiti, says that in the first 9 months since the training, his team won 120 appeals.

This is confirmed by prison officer Senior Sergeant Benson Ngui, who adds that, prior to the training, he would have expected no more than 1 or 2 successful appeals in a year.

‘Better than lawyers’

So how do the prisoner paralegals manage to win so many appeals?

They told me they used the failings of the system, exposing shoddy investigations by the police and incompetent rulings by magistrates.

“We try to prove the trial wasn’t safe, for instance in a case of defilement [child sexual abuse], the victim was never examined by a doctor, and the only evidence was the testimony of the mother who may have a grudge against the accused,” said Denga John Lenda, the deputy head of the paralegal team at Kamiti.

“We don’t mind if you committed it or not, we are trying to argue with the evidence the court adduced.”

Karanja is also proud to report that even those prisoners who do have lawyers are choosing to dismiss them and rely on fellow inmates instead.

Kenya’s constitution says that citizens have the right to a state-funded lawyer “if substantial injustice would otherwise result”.

Allan Nyange, who works as an advocate for Kituo Cha Sheria, explains that even when these state lawyers are provided, they can sometimes be more of a hindrance than a help.

“This is a file that is forced on an advocate, so you can imagine [they are] not interested in criminal things, [they] have other better, well-paid briefs, and this is a matter that is wasting [their] time,” he explains.

“So in most cases, most lawyers who are given those cases do not bother, and they would look for any opportunity to ask for an adjournment.”

For Mr Nyange, there is in no doubt about the effectiveness of the prisoner paralegals.

“I’ll tell you for a fact that most of them are better than lawyers, trained lawyers,” he says.

“They have all the time, and they are motivated by the fact that that is how you get people off the system and that is how you might be able to go home.”

But what happens when these paralegals do get out of prison?

Dismas Omondi was one of the first batch of paralegals to be trained in Mombasa back in 2007.

After more than 13 years on death row, he finally won his appeal and was released in 2010.

He is personally credited with helping more than 250 fellow inmates get acquitted.

Since his release, he has been working at Mombasa’s High Court – but not in a way that puts his legal knowledge and experience to good use.

He cleans the public toilets.

‘It’s a calling’

Mr Omondi needs to earn a living, and, at present, paralegals like him are expressly forbidden from charging for their advice.

Kenyan lawyers have expressed concern that paralegals could start passing themselves off as fully fledged lawyers to unsuspecting members of the public, and this is supposed to deter them.

But the prisoner paralegals have an ally in Kenya’s Chief Justice Willy Mutunga.

A reformer and human rights activist, he was one of the founders of Kituo Cha Sheria.

“From what I’ve seen of those paralegals in those prisons, it’s a calling – I’ve no doubt in my mind they can do a good job,” he says.

“If you are talking about justice, and somebody comes to my court and says: ‘I don’t have a lawyer but I have this paralegal and he’s going to represent me’, it should be the just thing to do.

“We’ve got to find ways of getting these paralegals into our courts.

“The law society should see these guys as reinforcement.

“The paralegals in prisons and outside prisons must play a role in the administration of justice.”

(source: BBC News)

Being on Death Row in Kenya

Being on death row in Kenya is not for the faint hearted. Currently there are approximately 2500 inmates on death row in Kenya, scattered across the 5 maximum security prisons, Kamiti, Naivash, Kingongo, Kibos and Shimo la tewa.

Living conditions are horrendous, a cell that can barely accomodate 4 single mattresses holds upto 14 prisoners at Kamiti. The well known notorious G block has 59 cells for inmates but 2 are set aside for the guards who come on night shift to sleep in. This frankly raises the first question, why are the guards given rooms to sleep in when they are actually on duty? What are they paid for? To sleep?

If an inmate were to contract a disease that is air borne then the chances of all the inmates in that cell getting it are very high due to the close proximity that everyone sleeps. Lice called ‘chawas’ are commonplace and do not allow the inmates to sleep peacefully, constantly crawling over their bodies and biting them.

There was once a case of all inmates in one cell contracting TB. The authorities did not diagnose the first one due to negligence and laziness. Rather than believe in prevention is better than cure, they say it is my lunch hour, come back tomorrow.

Medicine is constantly in low supply, the prison dispensary stocking a few drugs for flu, typhoid, diaorrhea, constipation, hypertension and vomiting. Most of the time a prisoner is given a prescription to go buy the drugs out of his own pocket even though he is a guest of the state.

In rare circumstances, a prisoner may be referred to Kenyatta hospital, the only referral hospital in Nairobi, the largest in the region for ailments that have persisted for a long time, a very long time! Even though this is the largest hospital in the region, they do not have all medication and again, the doctors tell the inmates to buy the medicine out of their own pockets. Common drugs such as Glucophage, Cardace, Valium, Augmentin, are not available.

Even if a prisoner is lucky enough to be referred to Kenyatta, he will have to give a bribe to the authorities manning the hospital in order to be availed escorts to take him to hospital. These bribes may go up to Ksh1,000 ($12.)

There is a cartel in place here, run between the prison guards and other inmates who work in the hospital in the prison.

If one has been referred, they go speak to the inmate who writes up the list of those referred on certain day and gives his Ksh200 to ensure his name is in the top 10. He will then go see one of the corporals in charge of running the hospital (there are 2) and give him Ksh500 to ensure his referral is not put at the bottom of the pile the following day. He will then go see the senior sergent in charge of officer discipline and give him Ksh200 to ensure he is not told the following morning there are no escorts.

Diet in Kenyan prisons is horrible. No one expects it to be upto any good standards in any prison worldwide, but in Kenyan prisons, one may not even feed the food given to prisoners to their worst enemy’s emancipated dog. It is monotonous, non nourishing and cooked poorly. Day in day out, this is what prisoners in all Kenyan prisons eat:

BREAKFAST- 1 cup of porridge made out of maize meal and water, no sugar.

LUNCH- 2 leaves of kale (a leaf that looks like spinach, native to Kenya,) 1 potato, 1 cup of ugali (a mixture of maize meal and water.)

DINNER- 1 cup of beans, 1 cup of ugali.

1 cup is a quarter litre of water. 3 times a week, every prisoner is given 1 piece of meat, the size of an adult’s thumb and everyday, every prisoner is given a quarter teaspoon of cooking fat. Once a week, the ugali is replaced with rice.

The rations above are for prisoners on death row, prisoners that go to work are fed a bit more. It is common to see prisoners die of malnutrition.

Sick inmates, those with HIV, TB, diabetes, hypertension, cancer etc are given more food too according to recommendations from the doctor, but again, the doctor has to be bribed to ‘prescribe’ more food.

Prison wardens are generally harsher on prisoners sentenced to death compared to the others. They tend to conduct more searches on blocks where death row inmates stay. It is known that inmates or death row are generally hard headed as they have nothing much to live for. Even though the actual act of hanging is no longer carried out, prisoners on death row are not allowed to work so are idle day in day out.

Prisoners have linked up with some corrupt prison wardens to smuggle in contraband such as phones, cigarettes (smoking is not allowed in Kenyan prisons,) cannabis, heroine etc.

The phones are used to con civillians as the authorities can not do much to them. The prisons department tried to install network jammers in Kamiti but failed as it is close to town and affected neighbours.

Conning has led to some prisoners becoming instant millionaires leading to another huge problem.

It is a known fact that homosexuality is rife in prisons, but in Kamiti, this is an understatement. Grown men actually ‘buy’ young boys to provide them with sexual pleasure. Some even go to the extent of ‘marrying!’ This has led to rise in the number of HIV positive prisoners. One may have come in negative, but will leave or die positive. Many refuse to be tested or swallow their pills because they have lost all hope.

As I said in my previous article, the offences that carry the death penalty in Kenya are treason, murder and robbery with violence. Currently there is no prisoner in Kenya on death row charged with treason.

Robbery with violence is tried at a magistrates court, and the accused person is not availed any counsel to represent them. They must ‘fight’ for themselves. All court proceedings are in English, yet 95% of prisoners do not speak English, forget know the law.

Those convicted by the magistrates court have to appeal the ruling at the high court of appeal. This wait may take up to 10 years! If their first appeal is dismissed, they may appeal to the court of appeal which once again has a similar waiting period. At appeal the accused may opt to have a counsel represent them but many choose not to as the lawyers provided are underpaid so do not do a thorough job, they are normally those that have just qualified or are doing miserably in their practice.

Murder is tried at the high court and the accused person must be represented by a counsel, either their own or one paid by the state. They are the same as those mentioned above hence they do a very poor job. If convicted they appeal to the court of appeal.

The new constitution made a provision for accused persons and even convicts to apply for bond but the conditions imposed by the courts are extremely harsh hence not many can afford it. The average trial time is 4 years.

Source: Op-ed by Rashi Bhalsani. Mr. Bhalsani is a graduate from Reading University in England. He was born and brought up in Kenya. Mr. Bhalsani advocates abolishing the death penalty worldwide and releasing back into society rehabilitated convicts. June 24, 2013