The death penalty is an anachronism in the Twenty-first Century, even in Kenya where the rule of the jungle seems to prevail everywhere. During the late John Michuki's reign of terror as the Internal Security minister, the reports of "extra-judicial" killings of suspected members of the proscribed Mungiki reached alarming proportions. It got worse when civil society's human rights activists seemed to be targeted by the police in an attempt to cover up the killings and disappearances of the Mungiki adherents. This is but one example why Kenyans cannot trust the Government of Kenya to fairly enforce or uphold the penal provisions of the Laws of Kenya regarding capital crimes or punishment.
Indeed, since the last executions, circa 1987, Kenya has had an unofficial moratorium on the carrying out of capital sentences. As Newton Arori notes in August's issue of the Nairobi Law Monthly, even Mwai Kibaki, John Michuki's boss, rather than sign the Death Warrants lying on his desk, chose to commute death sentences into life imprisonment. Mr Arori is wrong to presume that the moratorium on capital punishment is Kenya's attempt at political correctness or, to quote a rather apposite British quip, keeping up with the Joneses. In Kenya's case, even while Mr Michuki was overseeing the wanton killing of those who would not toe his line, Mwai Kibaki must have realised that Kenya's history of capital punishment was a very dark one and that, rather frequently, innocent Kenyans had been sent to the gallows.
The theories of retributive justice that Mr Arori quite possibly ascribes to are no longer viable in the Twenty-first Century "Digital Age." They are a throwback to the days when the State, in all its manifestations, was omnipresent and omnipotent. There is no justification for the Government of Kenya to continue imposing the death penalty when it has proven itself quite inept at promoting the rule of law, protecting the innocent and their properties, or properly prosecuting the perpetrators of heinous crimes. Casting a look back to the horrific events of late 2007 and early 2008, one is struck by the casual employment of lethal force by the Kenya Police, the indiscriminate shedding of blood by the supporters of the various political camps and the destruction of lives and properties on a large scale as was witnessed. Since those dark days, the Government, on whose shoulders the responsibility for investigation, prosecution, conviction and execution lies, has studiously avoided apportioning blame where it rightly belongs.
Even with the promulgation of a Constitution in August 2010, the victims of the violence are yet to receive justice, the perpetrators of the violence are yet to be properly investigated, charged in criminal courts, prosecuted, convicted or punished. The independent Office of the Director of Public Prosecutions has somehow managed to fumble the ball; hundreds of investigations into the violence are yet to be concluded. The Judiciary, as it is wont, has declared piteously, that its hands are tied by the law and that it cannot intervene in the affair.
In such an inherently iniquitous system, it is rank irresponsibility or callousness or both to suggest that the administration of justice infrastructure of Kenya is well-placed to oversee the application of the capital-crime provisions of the laws on the law books of Kenya. We cannot trust that the police will do a good job investigating the offences; we cannot trust that the Director of Public Prosecutions will handle capital cases any more competently than he will handle other criminal matters; we cannot trust that the Judiciary will not sit on its hands and bemoan the constraints of the law. The system is broken. To insist that murderers, armed robbers or traitorous Kenyans will receive a fair shake in the corridors of justice is to willfully blind oneself to the decrepit system that we inherited from the British.
And the British have much to answer for; if it were not for their conduct in the dying days of their empire, Kenya's administration of justice machinery would be vastly different. Testimonies from the accused "terrorists" of the Mau Mau who survived the Emergency are replete with stories of kangaroo justice, extra-legal executions, judicial iniquity and the pervasive and systematic employment of the entire machinery of the Government to subdue and subjugate all freedom-loving Kenyans. Mr Arori may not appreciate the sombre significance of words such as Olenguruone, Manyani or Lari, but a careful re-reading of Kenya's dark past will persuade him swiftly that the application of capital punishment in Kenya is something that must do away with. Swiftly.
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