Rejoinder to the Call by Nelson Havi for the Return of the Death Penalty

We¹ commend the Law Society of Kenya (LSK) which on Tuesday 23rd June 2020 under the brave leadership of the President Nelson Havi took lead in commemorating four years of the brutal triple murders of lawyer Willie Kimani, his client Josphat Mwenda and their taxi driver Joseph Muiruri. The three men were abducted on 23 June 2016, after leaving the Mavoko Law Courts where Willie Kimani was representing his client in a case against a police officer. The three were briefly held at an Administration Police Post and a week later, their bodies were discovered at the Ol Donyo Sabuk River in Machakos County. 

After a public outcry and lawyer led demonstrations across the country against forced disappearances and extrajudicial killings, four Administration Police Officers; Fredrick Leliman, Stephen Cheburet, Sylvia Wanjiku, Leonard Mwangi and police informer Peter Ngungi were arrested and charged with the murder of the three victims. 

Four years later, the murder case against the four is still ongoing. During the commemoration of the murders of Willie Kimani, Josphat Mwenda and Joseph Muiruri, the President of the LSK called upon the Judiciary and the Office of the Director of Public Prosecutions to expedite with the pending trial to its logical conclusion. He tweeted and also pointed out that, this was a particular case in which the LSK would be petitioning the President of the Republic of Kenya to sign the death warrants of the convicts in the event the event they will be handed capital punishment. 

While the death penalty is still provided for in Kenya, the Supreme Court did render the mandatory nature in which it was coached prior to 17 December 2017 through the Muruatetu case to be unconstitutional. The import of the Muruatetu case is that moving forward, judicial officers can now exercise their discretion in sentencing when presiding over capital trials, where their hands were hitherto tied to hand down nothing short of the death sentence. 

The Supreme Court while abolishing the mandatory death penalty in Kenya held that, in the absence of individualized consideration for offenders in a sentencing hearing, the mandatory death penalty violated constitutional provisions related to the right to a fair trial, the right to human dignity, the right to life and the right to equality. Moreover, the Court also found that the death penalty is “out of sync with the progressive Bill of Rights” in Kenya’s 2010 Constitution and an affront to the rule of law. The Court also relied on global death penalty jurisprudence to find the mandatory death sentence “harsh, unjust and unfair.” 

It thus comes as a big shocking surprise for the President of the Law Society of Kenya, himself a crusader of human rights and the rule of law to call for the return of the death penalty, even if it will be just for the killers of Willie Kimani and his two compatriots, when the global trends are indicative of the world gravitating towards abolition of capital punishment. 

Capital punishment is a barbaric form of punishment and there is no credible evidence that it deters crime any more effectively than imprisonment. It is irreversible besides being cruel and degrading, as there is no ‘humane’ way of carrying out executions. A keen observer of the remarks by the President of the LSK will similarly note that the call for the return of executions comes as way of using the death penalty as a tool for control and not justice. How unfortunate that those called upon to offer representation even in the worst of the worst criminal cases, would have a bias and a determination to allow the system to impose the death penalty. 

We take note that the LSK is mandated to advise the government and the larger public in all matters relating to the administration of justice in Kenya. Accordingly, we take this opportunity to invite the Law Society of Kenya under the very brave leadership of President Nelson Havi to take a position on capital punishment. Such position would be one that reflects global abolitionist trends beyond the observance of moratoriums. We also welcome the building of a formal engagement with the LSK and other key stakeholders where within our province, we will strive to build the institutional capacity of the criminal justice system to avoid miscarriages of justice as much as possible during trial of capital offences. This, would entail investing in the least, trained members of the Bar who conduct capital trial proceedings. 

As we remember Willie Kimani, Josphat Mwenda, Joseph Muiruri and all other victims of extrajudicial killings, calling for justice to be done, let us honour them but not with calling for more killings. The death penalty is a symptom of a culture of violence, not a solution to it. However, by working together while remaining true to our call of fidelity to justice and the rule of law, we know that we can end the death penalty not just at home, but in the Eastern Africa region, the continent and indeed everywhere in the world. 

Signatories to the Statement: 

Kenya 

Hanningtone Amol, Advocate

Gatambia Ndungu, Advocate

Sylvia Kooke, Advocate

Anne Munyua, Advocate

Evans Kaimenyi, Advocate

Teresa Mutua, Advocate 

Uganda

Susan Wakabala, Advocate

Fred Mbaziira, Advocate

George Musisi, Advocate

Hilda Murhon, Advocate

Doreen Namyalo-Kyazee, Advocate

Tanzania

Jebra Kambole, Advocate

Fulgence Massawe, Advocate

Nelson Ndeki, Advocate

Mashaka Mfala, Advocate

Evelyn Chijarira, Advocate

Amani Joachim, Advocate 

Read more about our Makwanyane Fellows and Trainers.

¹ We the signatories of this Statement are Capital Defenders and Fellows trained by the Makwanyane Institute at the Cornell Center on the Death Penalty Worldwide. We are committed to providing robust capital defense and zealous advocacy towards the abolition of the death penalty.