President Uhuru Kenyatta has commuted the death sentences of nearly 3,000 prisoners, the entire population of death row in Kenya. All had been given mandatory death sentences under a Penal Code inherited from Britain’s colonial rule. Although no reasons were given for the mass commutation, the decision came against the backdrop of a challenge to the constitutionality of mandatory death sentences in the Supreme Court of Kenya, in which the Court’s judgment is pending. Joe Middleton appeared in the constitutional challenge on behalf of the Death Penalty Project, which was admitted as an expert in the case.
All these prisoners were sentenced since President Kenyatta’s predecessor signed similar orders in 2009, commuting the death sentence of all the prisoners then on death row (over 4,000). That, too, was in the context of a pending constitutional challenge to the mandatory death penalty, in that case in the Court of Appeal of Kenya (Mutiso v Republic). Joe Middleton assisted counsel acting on behalf of the appellants in Mutiso, on the instructions of the Death Penalty Project.
Joe Middleton welcomed the move, but underlined the ongoing challenges for Kenya:
“The latest commutations are an important step forward for the thousands of affected prisoners, but executive intervention is no substitute for legislative reform. Most of these sentences are being imposed for aggravated cases of robbery, in some case where no violence was used and no injuries were inflicted, in summary proceedings before a magistrate in which many defendants are unrepresented. If the mandatory death sentences are unconstitutional, as the Government has accepted in the Supreme Court case, then the substituted life sentences are also unconstitutional, and these prisoners should have an opportunity for individualised sentencing so that proportionate sentences can be imposed by the judiciary”.