Moments before sentencing Joseph ‘Jowie’ Irungu to death for the murder of Monica Kimani, High Court Judge Justice Grace Nzioka unpacked the available sentencing options in Kenya.
Justice Nzioka highlighted that in addition to life imprisonment and jail terms, the death penalty remains a legal recourse for serious offences.
While ruling out life imprisonment and a fixed jail sentence, Nzioka referenced a court precedent indicating that life imprisonment equates to 30 years, considering remission.
“The question that one would then ask is if life imprisonment, and of course is acceptable, does not mean the life which that person would physically live or be alive. If it is 30 years with remission, he serves 20 years and his life moves on. These are issues the court had to think of,” she said.
In sentencing him to death, she explained that she took into account issues of human rights as spelt out in Article 26 of the constitution which states that a person’s life should not be deprived.
Justice Nzioka further referred to the international instruments on the preservation and the right to enhance an individual’s human rights.
“The International Convention of the Civil and Political Rights which has been ratified and which then, of course, becomes part of our law under Article 2 (5) (6) says this and it is important that I read out because you need to know that- that every human being has the right to life and I stop there and I tell myself as a court every human being has a right to life, that every human being includes the victim and the offender,” she stated.
“It then says that this right must be protected by the law, no one shall be arbitrarily deprived of his life,” she remarked.
The judge noted that while it has been construed to mean that the provision relates to the offender, it was in her view that it speaks to both the offender and the victim.
The convention, according to her, states that in countries that have not abolished the death penalty, the death sentence may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime.
“So, these international instruments that speak to human rights do recognise that there are exceptions circumstances where death may be inevitable,” Nzioka remarked.
She also quoted Article 4 of the Africa Charter on Human and People’s Rights ratified on January 23, 1992, which provides that human beings are inviolable and every human being shall be entitled to respect for his life.
“This in my considered opinion includes her life and the integrity of his or her person. Again it reiterates no one may be arbitrarily deprived of this right,” said the judge.
The case of Muruatetu and the Supreme Court, she noted, also provides that one can indeed impose a death sentence for extremely grave offences.
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