Authored By: Morgan Okoth
University of Nairobi
1.0 Case Citation and Basic Information
Case Name: Francis Karioko Muruatetu & another v Republic
Citation: Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2017] KESC 2 (KLR)
Court: The Supreme Court of Kenya
Judgement Date: 14th December, 2014
Bench Composition:
David Kenani Maraga – Chief Justice & President of the Supreme Court
Philomena Mbete Mwilu – Deputy Chief Justice & Vice President of the Supreme Court
Jackton Boma Ojwang – Supreme Court Judge
Smokin Charles Wanjala – Supreme Court Judge
Njoki Susanna Ndung’u – Supreme Court Judge
Isaac Lenaola – Supreme Court Judge
- Introduction
This was a landmark decision by the Supreme Court of Kenya which involved the determination of the Constitutionality of section 204 of the Penal Code which imposed a mandatory death penalty on murder convicts. It proved significant by restoring the people’s trust in the judiciary because it portrayed the Kenyan Judicial System as the watchdog of human rights. This is because it declared the mandatory penalty unconstitutional since it was not in sync with the provisions of the Bill of Rights.
3.0 Summary of Facts
The two appellants, Francis Karioko Muruatetu and Wilson Thirimbu Mwangi were convicted of murder, and sentenced to death. They appealed this decision, an appeal which was dismissed by the Court of Appeal. They later appealed to the Supreme Court.
Their main ground of appeal was challenging the mandatory death sentence which they were penalized with. They were not concerned with the death statement but its mandatory nature.
Upon this ground, they argued that the mandatory death statement was unconstitutional on the grounds that it interfered with the doctrine of separation of powers. This is because it took away the discretion of the courts to determine appropriate sentences upon conviction of murder.
4.0 Issues for Determination
The main issue that was outlined by the Supreme Court for determination was:
- Whether the mandatory nature of the death penalty provided for in the Penal Code section 204 violated the right to fair trial and non-discrimination, hence unconstitutional.
5.0 Arguments for Petitioners and Respondents
5.1 Petitioners’ Submissions
Counsel for the petitioners submitted that section 204 of the penal code violated the doctrine of separation of powers. It was the work of the courts to determine appropriate sentences for every party after hearing. The penal code used the word “shall” which translated to mandatory. The court therefore had no discretion to determine sentences for convicts of murder. They were obliged to impose the penalty that had been decided by parliament, an action beyond their functions.
He further submitted that the mitigation process formed a crucial part in criminal proceedings. If the penalty for murder was already imposed by the penal code, whether or not the convict was remorseful, or other relevant factors were present did not matter because in the end, the judge nonetheless had to impose the mandatory death penalty.
He also averred that denying murder convicts an opportunity to appeal amounted to discrimination. This is because convicts of other crimes were allowed to appeal the sentences to the higher courts.
He prayed that the court issue a declaration that the mandatory death sentence was unconstitutional and remit the case back to the High Court for sentence re-hearing.
5.2 Respondents’ Submissions
Counsel for the respondents concurred with the submissions and prayers of the petitioners.
6.0 The Supreme Court’s Analysis
The Constitution read together with the Universal Declaration of Human Rights protected the right to a fair trial as one of the non-derogable rights in Kenya.[1] The Criminal Procedure Code allowed the courts to receive evidence that may aid in determining a sentence before making such a sentence.[2]
It was always necessary to assess mitigating factors not only for the determination of sentence but oslo for future reference when the matter is appealed.[3] This same point of according a murder convict an opportunity for mitigation was reiterated in several cases such as Henry Katap Kipkeu v. Republic[4] and Dorcas Jebet Ketter & another v R.[5]
The court was of the opinion that section 204 of the penal code implied that mitigation was just a matter of records or procedural requirement but had no value simply because the sentence had already been determined just awaiting conviction.[6]
By allowing a murder convict to present their side of the story during mitigation, the trial judge was able to look at the history of the person and feel their reaction towards their offences.[7]
Murder had different degrees of wickedness and culpability.[8] A uniform penalty for all convicts without considering the said degrees resulted in harsh punishments for those whose sentences would be reduced based upon mitigation.[9]This blanket application of the penalty treated these people as a group who were not worthy of equal benefit of the law. This however did not respect their dignity at all[10] as was protected by the Constitution.[11]
A person who was not allowed to participate in mitigation, and was denied an opportunity to appeal their sentence could be deemed to have had access to justice.[12] No justice could be served when crucial rights and procedures were unavailable for a certain group of persons.[13]
On matters of discrimination, the court relied on article 27 of the Constitution[14] which provided for equality before the law including equal enjoyment of the rights and fundamental freedoms and non-discrimination. The court supported this constitutional provision with the ICCPR which protects the right to non-discrimination as well.[15]
It held that the mandatory death penalty was a colonial relic that had lost its place in Kenya.[16] That the laws needed to develop just as the complex society did, in order to be in tandem with the current needs of the society.[17]
Because the Constitution provided that the rights and fundamental freedoms in the Bill of Rights and were not granted by the state,[18] all convicts regardless of their sentences needed to have equal enjoyment of the law.
For murder convicts, the penalty was already determined making the mitigation process superfluous. Therefore, mitigation could not be conducted and if conducted, it was just for the record purposes.
In the same limb of argument, murder convicts could only appeal their conviction but not sentence.[19] It is for the same said reason that determining the sentence was out of the control of the courts.
Convicts of other crimes were given an opportunity to plead with the court during the mitigation process, after which the court would determine their sentences based on the mitigating factors, and could appeal their sentences as well. These remedies were not available for murder convicts.
The Supreme Court therefore found the mandatory death sentence unconstitutional on another ground that it was discriminatory by according murder convicts a treatment different from that accorded to convicts of other crimes.
7.0 Judgement
The Supreme Court decided that that section 204 of the Penal was unconstitutional.
The holding was informed by the violation of the rights to fair trial, equality and non-discrimination by the mandatory death penalty. It made it clear that the decision did not outlaw the death penalty as it remained be lawful and applicable. Only the mandatory imposition of that sentence was outlawed.
The apex court ordered that the case be remitted back to the High Court for sentence re-hearing.
It also ordered the Attorney General, the Director of Public Prosecution and other relevant agencies to make a professional review of the judgement with the aim of creating a framework for sentence re-hearing for other convicts with similar grievances as the applicants.
The final order was that the judgment be placed before the legislature, in attendance of the Attorney General, and the Kenya Law Reform Commission, with the objective of formulating and enacting a statute to give effect to the judgment on the mandatory nature of the death sentence.
8.0 Critical Analysis.
8.1 Significance
This case aligned Kenya’s legal landscape with the global trends in abolishing the mandatory death penalty.
This was a great step in ensuring that the Penal Code and the Criminal Procedure Code were in sync with the Constitution.
The judgement underscored the need to ensure that all statute laws were applied in a manner that respected human dignity and other non-derogable rights such as the right to fair trial and natural justice i.e. audi alteram partem; the right to be heard.
It also emphasized on the doctrine of separation of powers by restraining parliament from encroaching into the functions of the judiciary, i.e. determining sentences.
8.2 Implications and Impact
This hallmark decision had a direct impact on parties who were convicted of murder and mandatorily sentenced to death. The court opened doors for those who wished to apply for sentence re-hearing. It was a key decision in criminal proceedings as it emphasized on the significance of mitigation and aggravation for all, including convicts of murder.
However, it resulted in mass confession in the magistrates’ courts. The lower courts had embarked on serious re-hearing proceedings for sentencing, regarding the repealed penalty. These cases involved some which were pending in both the High Court and the Supreme Court, without the consent of the said superior courts.
The Supreme Court was later forced to clarify the scope of its application. It clarified that the ruling only applied to mandatory death sentences but not all mandatory sentences, and instructed any party who wanted a declaration that all mandatory sentences were unconstitutional to file fresh petitions in the High Court.
8.3 Critical Evaluation
Why did the court instruct that fresh petitions challenging all other mandatory sentences be filed at the High Court yet all those sentences were similar to the one in Muruatetu one in nature?
The main reason why the mandatory death sentence was declared unconstitutional was because of its mandatory nature.
Why did the Supreme Court have an issue with lower courts applying the same reasoning to all other mandatory sentences?
Kenya had been facing the challenge of a backlog of cases for a very long time. The initial confusion and incoherence in the lower courts was a result of the delay by the Attorney General and the Legislature in coming up with a comprehensive legal framework to guide the application of mandatory sentences as was ordered by the Supreme Court.
In 2019 when the apex court issued clear guidelines, the two initial appellants had not been accorded a sentence re-hearing.
Fresh petitions being filed in the High Court would result in great denial of justice as the litigation could take quite a long time before their determinations were made.
It could have been reasonable for the Supreme Court to allow the lower courts to apply this decision in all other mandatory sentences pending the creation of a robust legal framework by the Attorney General, the Legislature and other relevant bodies. This would be for the sake of ensuring access to justice for all as all mandatory sentences had similar effects.
9.0 Conclusion
While murder is a grave offence, those who are convicted deserve equal treatment and benefit of the law as the rest. This decision complements the view that human rights are earned by the virtue of being humans and are not granted by the state. It will have a lasting impact on future legislations in which parliament will have to stay within their constitutional mandates in line with the doctrine of separation of powers.
If the enacted legislation would bring coherence and consistency within the courts as regards death sentence.
10.0 Reference(S):
Laws
Constitution of Kenya 2010
Criminal Procedure Code (Cap 75, Laws of Kenya, revised edition 2012)
Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III) (UDHR)
International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR)
Case Laws
Dorcas Jebet Ketter & another v R, Cr App. No 10 of 2012
Edwards v The Bahamas (Report No 48/01, April 4, 2001)
Godfrey Ngotho Mutiso v Republic [2010] eKLR (Court of Appeal of Kenya at Mombasa, Criminal Appeal No 17 of 2008)
Henry Katap Kipkeu v. Republic, CR. App. No 295 of 2008
Sango Mohamed Sango & another v Republic Criminal Appeal No 1 of 2013 [2015]eKLR
[1] Constitution of Kenya 2010, article 25(c) & Universal Declaration of Human Rights, article 10
[2] Criminal Procedure Code, section 216 and 329
[3] Sango Mohamed Sango & another v Republic Criminal Appeal No 1 of 2013 [2015]eKLR
[4] Henry Katap Kipkeu v. Republic, CR. App. No 295 of 2008
[5] Dorcas Jebet Ketter & another v R, Cr App. No 10 of 2012
[6] p45
[7] p52
[8] p53
[9] ibid
[10] p50
[11] Constitution of Kenya 2010, article 28
[12] p57
[13] ibid
[14] Constitution of Kenya 2010, article 27(1)(2)(5)
[15] International Covenant for Civil Cultural and Political Rights, article 26
[16] p 67
[17] Godfrey Ngotho Mutiso v Republic [2010] eKLR (Court of Appeal of Kenya at Mombasa, Criminal Appeal No 17 of 2008) p14
[18] Constitution of Kenya 2010, article 19(2)
[19] Edwards v The Bahamas (Report No 48/01, April 4, 2001)
