Constitutional Reform and the Abolition of the Mandatory Death Penalty in Kenya

By Novak, Andrew | Suffolk University Law Review, Spring 2012 | Go to article overview

Constitutional Reform and the Abolition of the Mandatory Death Penalty in Kenya


Novak, Andrew, Suffolk University Law Review


The death penalty is rapidly receding in the former British colonies of common-law Africa. (2) Although proposals to institute or retain the death penalty for a wide assortment of crimes are not uncommon, actual judicial executions have grown extremely rare south of the Sahara Desert. (3) The death penalty has fallen into disuse in most of common-law Africa, and many of these countries are now considered de facto abolitionist. (4) As in other parts of the retentionist world, death-penalty abolition is an incremental process, nurtured more by small steps--stays of execution, grants of clemency, judicial clarification--than by dramatic ones, the most important of which for the continent of Africa was the 1995 decision of the Constitutional Court of South Africa, deeming the death penalty unconstitutional. (5) Upon independence, former British colonies inherited nearly identical constitutions drafted at Lancaster House in London, each of which specifically saved the death penalty from constitutional challenge. (6) Although common-law African constitutions have been written and rewritten since independence during the eras of one-party rule in the 1970s, of economic adjustment in the 1980s, and democratization in the 1990s, most former British colonies retain similar constitutional and legal structures, including retention of the death penalty in national penal codes. (7) The mandatory death penalty, a relic of nineteenth century Britain, is the most constitutionally vulnerable aspect of African death-penalty regimes, and is facing sustained challenge in a number of countries. (8)

On July 30, 2010, the Kenyan Court of Appeal invalidated the mandatory death penalty for murder, becoming the third national court in common-law Africa to do so. (9) The mandatory death penalty provided an automatic death sentence for any person convicted of murder, without judicial discretion to substitute a lesser sentence. (10) The penalty was transplanted from Great Britain to the colonies without any benefit from the major criminal-justice reforms, including death-penalty abolition, passed by the British Parliament in the 1950s and 1960s. (11) Since the 1977 decision of the United States Supreme Court in Woodson v. North Carolina, which invalidated the mandatory sentence in favor of a discretionary regime, the mandatory death penalty has been on the sharp and rapid retreat worldwide. (12) Kenya joins a long line of former British colonies in finding the mandatory death penalty incompatible with global human-rights norms. (13) The courts of each of these former colonies, relying on similar constitutional texts originally drawn up by departing British officials, cite each others' case law and form a body of global "common law" death-penalty jurisprudence. (14)

This Article first addresses the retreat of the mandatory death penalty worldwide and constitutional challenges brought against the penalty on four continents. The Kenyan Court of Appeal's decision in Mutiso v. Republic is placed in both this global context, and a historical and cultural one, through a detailed analysis of the history of the death penalty and its use in colonial and independent Kenya. The Article then compares the Court's decision in Mutiso with the case law from other common-law countries, particularly the recent decisions arising out of the Supreme Court of Uganda and the Supreme Court of Appeal of Malawi. (15) Finally, this Article will discuss the contribution of the three decisions--in particular, Mutiso--to the global corpus of death-penalty jurisprudence and their expected impact on similar challenges percolating in other African common-law nations.

Like Malawi and Uganda, the death-penalty regime in Kenya is largely a foreign import that has fallen into disuse after abuses during the colonial era and periods of authoritarian one-party rule after independence. Unlike Malawi and Uganda, which constructed entirely new and progressive constitutions during the transition to multiparty democracy in the 1990s, Kenya continued to operate under an amended version of its independence constitution, which had certain flaws as to the structure of government and protection of fundamental rights. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Constitutional Reform and the Abolition of the Mandatory Death Penalty in Kenya
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.