EXPLAINED: Jowie Irungu & The Story Of Death Penalty In Kenya

Jowie's death sentence reignited the conversation regarding the death penalty in Kenya, with some people thinking that he could be executed in prison

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Mar 13, 2024 - 17:40 Updated: Mar 13, 2024 - 17:46
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EXPLAINED: Jowie Irungu & The Story Of Death Penalty In Kenya
Jowie Irungu in court ahead of his sentencing on March 13, 2024. /EAGLE NEWS FEED

After Lady Justice Grace Nzioka's ruling which handed Joseph Irungu, alias Jowie a death sentence on Wednesday, March 13, many Kenyans have run rampant online on a determination some thought was an extreme penalty for a first-time offender.

Before today, the only other recent instance where a Kenyan was slapped with the death sentence- in recent memory that is- is when former police sergeant Fredrick Ole Leliman was sentenced to death over the murder of lawyer Willie Kimani in 2016. This was a ruling made in February 2023.

Jowie's death sentence reignited the conversation regarding the death penalty in Kenya, with some people thinking that he could be executed in prison in case he doesn't appeal his death sentence in higher courts and get a favourable ruling.

Jowie Irungu in court on February 9, 2024. /DAILY NATION

History Of Death Penalty In Kenya

While thousands in Kenya have been handed death sentences for various offences, no one has actually been publicly executed since July 1987 when Hezekiah Ochuka, Pancras Oteyo Okumu and two other masterminds of the 1982 coup d'état attempt were convicted of treason, sentenced to death and subsequently hanged.

A group of disgruntled soldiers in August 1982 tried to overthrow the government of late President Daniel Arap Moi. Ochuka, a former army officer who wielded the rank of Senior Private Grade-I, the second lowest rank in the Kenyan military, ruled Kenya for about six hours before the other faction of the military that was loyal to Moi ‘overthrew’ the insurrectionists.

The late junta leader was hanged at the Kamiti Maximum prison in July 1987 after the court sentenced him to death.

The death penalty in Kenya is therefore given as punishment to a person convicted of a capital offence. Capital offences include; murder, robbery with violence, attempted robbery with violence or treason - all of which attract the death sentence.

Why Kenya Does Not Execute Criminals Anymore

However, Kenya no longer hangs those who are convicted of murder, robbery with violence and treason. Instead, their sentences are usually commuted to life imprisonment.

This is because a landmark ruling by the Supreme Court in December 2017 declared the mandatory death penalty unconstitutional, reopening the debate as to what purpose the death penalty serves in the criminal justice system and whether its continued existence in statutes adds value.

At a special sitting of the court, its members questioned several court decisions delivered in the wake of the watershed case of Francis Muruatetu and said that the confusion that had arisen needed to be resolved.

The special sitting also made clear that the National Assembly, along with the Senate, the Attorney General and the Kenya Law Reform Commission, had not met the court’s deadline to propose a new framework for such cases.

Muruatetu was alongside another death row convict, Wilson Thirimbu Mwangi, in a case that made global headlines. The apex court ruled that the mandatory death penalty was unconstitutional after the duo argued that it infringed on their right to life.

In July 2023, the Court of Appeal also declared the life imprisonment sentence unconstitutional after Judges Pauline Nyamweya, Jessie Lessit and George Odunga unanimously ruled that it is unfair to outlaw mandatory death sentences, only to order a person to remain behind bars until they die.

Why The Death Sentences Then?

Despite a declaration by the Supreme Court in 2017 that the mandatory death penalty is unconstitutional, the courts still hand down death sentences, a matter Kenya National Commission on Human Rights (KNCHR) has been pushing for.

In 2007 and 2015 the Kenyan Parliament voted against the abolition of the death penalty when bills were initiated by individual lawmakers. Kenya is among a handful of African countries which are considered de facto abolitionist states, meaning that they have not executed in 10 years.

Illustration of a death penalty. /THE STAR

KNCHR last year lauded President William Ruto when he reduced the death sentence imposed on capital offenders to life sentences.

In a gazette notice dated July 19, 2023, the conviction rule was softened following a recommendation from the Advisory Committee on the Power of Mercy chaired by Attorney General Justin Muturi.

"This is a move in the right direction as it aligns Kenya with the global trends on the application of the death penalty. It is also in line with the various regional and international treaties and conventions that Kenya has ratified including the International Covenant on Civil and Political Rights (ICCPR), the UN Convention Against Torture (CAT) as well as the African Charter on Human and People’s Rights (ACHPR).

"As a Commission, we continue to hold the position that the Death Penalty is the ultimate violation of human rights, disproportionately affects the poor, and as such has no place in our society," KNCHR said in a statement following Ruto's move.

The Argument That Sealed Jowie's Fate

The Office of the Director of Public Prosecutions (ODPP) and the family of the late Monica Kimani had invited the court to hand a death sentence to Jowie, who was found guilty of murder. 

During the sentencing at the Milimani Law Court, Justice Grace Nzioka noted that the prosecution, in its submissions, implored the court to sentence Jowie to death for the harm caused to the victim’s family. 

“The court has been invited to consider that the crime had serious physiological and physical harm to the victim and family. Based on this factor, the prosecution argues that the court should meet out the sentence as provided under the law,” noted Justice Nzioka. 

Justice Grace noted that Monica’s family also implored the court to hand Jowie a death sentence. 

“The victims’ family in their submission dated March 7, drew the court’s attention to the sentence provided for the offence of murder. Which is stipulated under section 204, which says a person convicted for the offence of murder shall suffer death,” she read. 

“They led the court through objectives of sentence and invited the court to consider the fact that the accused person did not play a peripheral role in the commission of the offence, but was the main perpetrator.”

The family wanted Jowie handed the death sentence, describing Monica’s murder as “cold-blooded and barbaric.” They argued that Jowie attempted to conceal the offence by stealing an ID card and destroying clothes thereafter. 

“No monetary compensation can bring the deceased back. Death of diseased occasioned them economic loss as the business she was manning in South Sudan collapsed and it was only means of the family,” she read. 

In her verdict, Judge Nzioka argued that Jowie was not eligible for rehabilitation, even though he never asked for a non-custodial sentence. 

Lady Justice Grace Nzioka reads a judgment at Milimani Law Courts in Nairobi on March 13, 2024. /NATION AFRICA

"The manner in which the offence was committed did not at any one point intend to give the deceased even a single minute to live. It is a tragic loss of life on extreme circumstances bordering on madness,” she argued. 

"This murder was intentional. It was not a defensive act. It was not out of provocation. It was planned, intended and executed.” 

What Happens Now?

Legal experts may argue that the death sentence passed on Jowie, that is an indeterminate time in prison, is unconstitutional and a degrading inhumane treatment given that the likes of Naftali Kinuthia were sentenced to 40 years in prison over the murder of Moi University medical student, Ivy Wangechi in April 2019.

Jowie's lawyer, Hassan Nandwa, had previously indicated that the murder convict would appeal the guilty verdict at the Court of Appeal after his sentencing.

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