DEATH SENTENCE OR 7 YEARS FOR THE SAME OFFENCE? – KENYA’S CONFLICTED PENAL CODE
When a death row prisoner has his date with the executioner commuted and starts a lifelong relationship with the inside of a prison instead, he will usually continue to explore every avenue to escape a prolonged life behind bars. Those explorations seldom amount to anything, but in the case of two prisoners waiting out their life-term in a jail in Kenya, luck – and a failure of Parliament to sort out a conflict of laws – was on their side.
Two condemned prisoners were originally charged and convicted of attempted robbery with violence. On conviction they were sentenced to death. Though the death penalty was commuted to life, they lost both their appeal attempts (to the High Court and the Court of Appeal) on the question of conviction and appropriate sentence. That seemed to be the end of the road: they would have to reconcile themselves to spending the rest of their lives in jail.
And then they, or their lawyers, thought of a new argument on sentence. Their legal team argued there were two sections of the Penal Code that appear to offer conflicting provisions on sentence in a case of this kind.
Section 297 (2) stipulates the death penalty for attempted robbery with violence. On the other hand, Section 389 provides a seven-year sentence for “an attempt to commit a felony”. According to counsel, attempted robbery with violence amounted to a felony and so it should be considered as a Section 389 offence.
He argued that there was a contradiction between the two sections, and that this contradiction infringed the rights of Muindi and Musila. Section 297 (2) was unconstitutional: delays and inconsistencies in carrying out the death sentence amounted to cruel and degrading treatment and besides, they were entitled to the lesser sentence in such a case.
Judge Ogola in his recent decision on the matter he said the crucial question was whether attempted robbery with violence was a felony and concluded that indeed it was. While one section of the Penal Code provided the death sentence for this crime, another stipulated a term not exceeding seven years. “There is clearly a conflict between the two sections as to the sentence that should be meted out for the offence of attempted robbery with violence.”
Did that conflict infringe the fair trial rights of the two convicts? The drafters of the Penal Code “seem to have created two sentences for the offence in question”, in circumstances where the constitution made clear that an accused should be entitled to the least severe sentence in such a case.
The judge pointed out that this was not the first time a court has had to deal with the problem. For example, in two cases dated 2010 and 2011, the Court of Appeal had reached the same conclusion – that the accused should benefit from the lesser sentence. The conflict between these same two provisions was clearly pointed out by that court.
Judge Ogola thus ruled that there was indeed a conflict between the sentencing provision in the two sections, and that the two men were entitled to benefit from the lesser sentence. Since they had already served more than the seven years provided in the alternative section, they were to be released from prison at once, unless being held for other reasons.