Constitutional reform and the abolition of the mandatory death penalty in Kenya.

• Author: Novak, Andrew

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. (16) On August 4, 2010, less than a week after the Court of Appeal's decision in Mutiso, Kenyan voters went to the polls to overwhelmingly approve a new constitution, the second since Kenya's independence on December 12, 1963. (17) As one of the most legally mature countries in Commonwealth Africa, the fall of the mandatory death penalty in Kenya may have far-reaching implications for other African countries working under a similar constitutional framework. The new Kenyan Constitution will eventually lead to the establishment of a Kenyan Supreme Court, as an additional layer of appellate review above the Court of Appeal. (18) Should Kenya's 2010 Constitution usher in an era of stability and peace, particularly after the failure of the 2005 constitutional referendum and the 2007 election crisis, the stature of the Kenyan judiciary may increase even further.

THE CONTRACTION OF THE MANDATORY DEATH PENALTY WORLDWIDE

The mandatory death penalty, which passed from Britain to the world via the British imperial project, has faced a sustained retreat worldwide since the abolition of the death sentence in Great Britain in 1965. (19) The penalty first fell in the major retentionist common-law powers, the United States and India, and then spread to smaller retentionist legal systems in the developing world. (20) Beginning in the late 1990s, a new wave of abolition swept through thirteen countries of the Commonwealth Caribbean and, in the first decade of the twenty-first century, common-law Africa as well. From its inception, this wave of abolition was intentional and coordinated. (21) As the mandatory death penalty retreats, death-penalty regimes will continue to be harmonized across borders and better reflect international norms of human rights in criminal-sentencing regimes.

WOODSON V. NORTH CAROLINA AND ITS PROGENY

In 1976, the United States Supreme Court struck down the mandatory death penalty for murder in Woodson v. North Carolina (22) Mandatory capital-punishment statutes had never been popular in the United States and had generally died out by the early twentieth century, but they faced a brief revival after the Supreme Court struck down Georgia's death penalty in 1972. (23) Once the Supreme Court declared a standardless discretionary sentence unconstitutional, thirteen states adopted a Model Penal Code regime with sentencing guidelines and weighing of aggravating and mitigating circumstances, and twenty-two states reverted to the common-law, nondiscretionary capital-sentencing regime. (24) Accepting appeals against the North Carolina and Louisiana statutes, (25) a 5-4 Supreme Court held that the statutes providing for a mandatory death sentence violated the Eighth and Fourteenth Amendments. (26)

The Court identified several fundamental flaws with a mandatory capital-punishment regime, which have been widely cited by death-penalty reformers and later courts. First, a mandatory sentence "simply papered over the problem of unguided and unchecked jury discretion," because it exacerbated the problem of jury nullification: juries acquit at higher rates in mandatory death-penalty regimes. (27) As the Court noted, such a scheme actually exacerbates the Furman problem of unfettered discretion. (28) In essence, because a jury was deciding guilt and sentence simultaneously, they risked merging the two decisions. In addition, a mandatory sentence failed to individualize an appropriate sentence to the relevant aspects of the character and record of each defendant and consider appropriate mitigating factors. (29) The sentence treats individuals "as a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death." (30) While individualization is not necessarily required for all criminal sentencing, death is different; the Court noted that the "fundamental respect for humanity" underlying the Eighth Amendment required consideration of the person of the offender and the circumstances of the crime. (31)

The mandatory death sentence for murder had been on the decline in the Commonwealth for decades by the time Woodson was decided. Although the sentence was not abolished in the United Kingdom until 1965, the death sentence was not really mandatory in actual practice; the Home Office reviewed every death sentence and granted clemency in nearly half of cases. (32) "Executive clemency exists in most, if not all American states, but its incorporation into the machinery of capital punishment is not as complete as that of the Home Office in Britain." (33) Even in South Africa, where the machinery of judicial execution saw frequent use, the mandatory death-penalty regime allowed consideration of extenuating circumstances after 1935. (34) Prior to the consideration of individualized circumstances in sentencing in South Africa, the Governor-General commuted sentences in the overwhelming majority of cases, emphasizing the Woodson Court's criticism that the mandatory death penalty simply swept too broadly. (35)

Since 1976, Woodson v. North Carolina has gone global. Woodson is a seminal case in what Professor Carozza refers to as the global common law of the death penalty, one cited by courts across the common-law world in decisions invalidating the mandatory death penalty. (36) In 1983, the Supreme Court of India decided Mithu v. State of Punjab, which tracked Woodson closely. (37) Chief Justice Yeshwant Vishnu Chandrachud's opinion carried echoes of the elegant decision by Justice Potter Stewart in Woodson:

A provision of law which deprives the court of the use of its wise and beneficent discretion in a matter of life and death, without regard to the circumstances in which the offence was committee and, therefore without regard to the gravity of the offence...