FRANCIS KARIOKO MURUATETU V REPUBLIC

Case Title: Francis Karioko Muruatetu & another v Republic; Katiba Institute & 4 others (amicus Curiae) (Petition 15& 16 of 2015) [2016] KESC 12(KLR) (14 December 2017)

Citation: [2016] KESC 12(KLR) 

Court: Supreme Court of Kenya

Judges: D K Maraga Chief Justice, PM Mwilu, Deputy Chief Justice, J B Ojwang’, SC Wanjala, Isaac Lenaola, Njoki Ndung’u

Bench type: Full bench

Date of Judgement: 14th December 2017

Parties:

Petitioners: 

• Francis Karioko Muruatetu
• Wilson Thirimbu Mwangi
• Kenyan nationals accused, convicted and sentenced to death for murder

Respondent: Republic of Kenya

Amicus Curiae: Katiba Institute, Death Penalty Project, Kenya National commission on Human Rights, International Commission of Jurists-Kenya chapter, Attorney General

FACTS

The petitioners had been convicted of robbery with violence and murder and sentenced to death by the high court under section 204 of the Penal Code. They appealed in the Court of Appeal challenging the legality of the mandatory nature of the death sentence imposed on them by the High Court. The court of appeal in 2014, however, affirmed the decision of the High court. They filed other separate appeals at the supreme court of Kenya which have since been consolidated. Mr. Ngatia represented Muruatetu, the first petitioner while Kilukumi represented the second petitioner. Upon their applications, The Death Penalty Project, The Kenya National Commission of Human Rights, The Kenya Section of the International Commission of Jurists, the Legal Resources Foundation and The Katiba Institute as well as the Attorney General were admitted as amici curiae.

 ISSUES:

1. The major bone of contention in this case was whether the mandatory nature of the death sentence imposed on the petitioners as provided for by section 204 of the Penal Code is unconstitutional,
2. whether the indeterminate life sentence should be declared unconstitutional, 
3. whether the court can or should define the parameters of life sentence

ARGUMENTS

Petitioners 

1. The petitioners argued that the mandatory sentence imposed upon them and the commutation of that sentence by an administrative fiat to life imprisonment are both unconstitutional and therefore null and void. To justify their assertion, they argued that the mandatory nature of this death sentence interferes with the discretion of the court forcing it to hand down a sentence predetermined by the legislature thus fouling the doctrine of separation of powers. In the circumstances the petitioners are entitled to damages, the quantum of which the court should assess. They submitted that the sentencing process is part of fair trial as per article 50(2) of the constitution and the mandatory death sentence violated that right in that it denied the trial judge discretion in sentencing.  
2. The Petitioners relied on a case law Patrick Reyes v The Queen (2002) in support of their submissions on murder and life imprisonment where it was held that murders differ so greatly from each other and as such it is wrong to prescribe the same punishment for all murders and that the death sentence is unconstitutional as it disregarded an offender’s personal circumstances thus robbing personal dignity. They also cited two US Supreme Court cases, Woodson v The State of North Carolina and Roberts V Louisiana which declared mandatory death sentences on certain classes of Murder as unconstitutional. The Petitioners further cited several others cases from different countries including a Kenyan case by the court of appeal in Godfrey Mutiso v Republic in which It was decided that a uniform Death Sentence deprives the courts from considering mitigating circumstances and fails to appreciate that there may be unequal participation in crime which would result to different charges and sentences on the accused. The appellants cited several articles of the constitution: articles 1(1), 1(3), 2(4), 19(3),20(1) ,25,26(1), 27(1), 28,29,50(2), 159(1) and 160(1) which generally provide for the supreme nature of the constitution and its provisions and that any law or practice that is against its provisions is null and void.
3. Consequently, the petitioners wanted the court to declare mandatory death sentence unconstitutional, an award of damages for their unconstitutional detention which had caused them agony for 17yrs in the segregated death row and that the case be referred back to the high court for resentencing.

Respondents 

• The respondents relied on article 26(3) of the constitution to aver that the right to life was not absolute and could therefore be limited through a death sentence. However, they concurred with the petitioners that the mandatory nature of the sentence was unlawful and that the legislature should not have limited the discretion of the judiciary in deciding the sentence.
• In support of their averment, they stated that a lot of information that can serve as the mitigating factors is collected by the court during trial, and if such information can not be used due to the existence of a fixed sentence, then that would amount to violation of the right to fair trial under article 50(2) of the constitution of Kenya.

Amici curiae

• The amici curiae, in their joint submission, were also against the constitutionality of the mandatory nature of the penalty and not against the penalty itself. They submitted that the mandatory sentence was against both national and international law and customs against freedom from cruel, inhumane and degrading treatment in addition to the rights mentioned by the respondents. (Fair trial and violation of doctrine of separation of powers. They also relied on the Woodson v North Carolina case to support their argument.
• The amici curiae were however against the prayer of the petitioners for a resentencing citing that the president had already commuted death penalty to a life imprisonment therefore pointless to challenge its legality.

ORDERS

1. Following the question on unconstitutionality of the mandatory nature death sentence, the court held that section 204 of the penal code was unconstitutional but did not disturb the validity of the sentence as a limitation to the right to life under article 26(3).
2. The court ordered the case to be remitted to the High court for re-hearing on sentence only.
3. The court ordered the Attorney General and Director of Public Prosecution to prepare a detailed review in the context of the present judgement setting up a framework to deal with sentence rehearing of cases similar to the petitioner’s case.
4. The court also directed that the judgement be presented to the legislature to make the necessary amendments to give effect to the judgement on the mandatory nature of death penalty as well as the parameters of how many years shall constitute life imprisonment.

RATIONALE

Constitutionality of death penalty and violation of right to fair trial

• On the first issue at hand on the constitutionality of the mandatory life sentence the court found it to be inconsistent with the laws of the land. The court stated, by citing the ruling in Godfrey Mutiso case, where it was held that section 204 of the penal code which provides for mandatory death sentence is antithetical to the constitution provisions on protection against inhuman or degrading punishment and fair trial. The court observed that on the international arena, most jurisdictions have declared not only the mandatory but also the discretionary death penalty unconstitutional and cited the case Roberts v Louisiana. And in Spence &and Hughes v Queen, Byron CJ stated that there should be a requirement for individualized sentencing in implementing the death penalty. The court also cited Indian cases including Mithu v state of Punjab where the Indian supreme court held that a law that disallowed mitigation and denied judicial discretion was unfair and unjust. To determine this, matter the court considered articles 19(3),20(1) and (2),28,50(2) on the rights of the appellants. It also considered the fact that Kenya is a signatory of the ICCPR which has provisions under its article 14 that in determination of any criminal charge against a person, they are entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The UNCHR has recommended abolition of the death sentence. Consequently, the court found section 204 of the penal code to be inconsistent with the constitution and invalid to the extent that it provides for a mandatory death sentence for murder.

Whether the court could fix a definite number of years for a life sentence

• The court observed that a life sentence was not defined in the Kenyan law. It observed that jurisdictions like the UK provides for guidelines for sentencing different categories of life imprisonment. The court further cited article 51(3) of The Constitution of Kenya which empowers the parliament, not the judiciary, to enact legislation regarding humane treatment of people in detention. In addition, the court also considered the rehabilitative nature of sentencing in Kenya against retribution and concluded that life sentence cannot be presumed to mean the natural life of the person. 
• the court recognized that although the Judiciary released comprehensive sentencing guidelines in 2016, there was no specific provisions for the sentence of life imprisonment because it is an indeterminate sentence. The Court agreed with the High court decision made in Jackson Wangui, supra, which found that it is not for the court to determine what constitutes a life sentence or what number of years must first be served by a prisoner on life sentence before they are considered for parole. That would be the function of the legislature. The court also acknowledged that the fact that sentencing is for rehabilitation of the prisoner should mean that life sentence is not necessarily the natural life of the prisoner. The court therefore recommended that the Attorney General and the parliament commence and develop a legislation of what should constitute a life sentence. 
• Whether the indeterminate nature of a life sentence was unconstitutional. The court also observed that the appellants had not sufficiently argued and illustrated the particulars of why the indeterminate life sentence should be declared unconstitutional. For an issue like this that required a legislation to be examined, reasoned and well thought arguments needed to be brought up.
• In summary ,the court therefore declared the mandatory sentence unconstitutional and ordered the matter to be reheard in the High Court. The court also directed the Attorney General, The DPP, and other relevant agencies to prepare a detailed review in context of the judgement and order made with a view to setting a framework to deal with sentence rehearing. The court further directed the judgement be placed before the speakers of the parliament, the attorney general and the Kenya Law Reform Commission for any necessary amendment.

CONCLUSION

Having considered the case, I come to a conclusion and support the decision of the court that the mandatory death sentence as under section 204 of the Penal Code is unconstitutional. I base my conclusion in the argument that the mandatory death sentence deprives the court the discretion during sentencing. It is clear that this sentence violates the right of the offender to a fair trial as under article 25 of the constitution.

From the view of the doctrine of separation of powers, the mandatory death sentence violates the independence of the judiciary from other arms of government. The section 204 of the penal code seems to be controlling the decision of the court in this matter leaving its hands tied and bound to follow its provision.