James Karanja Kimani and Peter Gitau Njoroge shouldn’t have done it: they, with others, threatened a Mr Edward Kang’ethe Mwaura at Kiranga in Murang’a County with pangas and rungus back in February 2011 and stole two pairs of trousers, a phone, a charger and Sh 150 in cash from him. Last week they were sentenced to death by a Thika court on two counts of robbery with violence.

The total value of goods and cash taken was valued at Sh 2,000. For the benefit of the Forum’s many thousands of readers who live outside Kenya, Sh 2,000 is the equivalent to about 23 US dollars, 15 British pounds, or 18 euros.

The attack was of course unforgivable and Kimani and Njoroge deserve to be punished but a death sentence?

The decision by principal magistrate B J Ndeda however, raises other issues.

The death penalty in Kenya: a de facto moratorium

In 2009, President Kibaki announced plans to abolish the death penalty in Kenya following decisions in Uganda and Malawi that those countries would restrict its use in line with contemporary human rights standards. However, he also deferred any decision on the matter until a study had been undertaken into whether or not the death penalty acts as deterrence to crime.

At the time of President Kibaki’s announcement it was estimated that there were 4,000 prisoners on death row in Kenya.

In February 2010, Kenya told the United Nations Human Rights Council that the de facto moratorium on the use of the death penalty in Kenya would remain in place. No death sentence has been carried out in Kenya in the last 25 years.

Kenya’s Court of Appeal states that the death penalty is unconstitutional

Six months later, in a landmark decision, the Court of Appeal Kenya declared the mandatory death penalty for murder to be unconstitutional in that its application did not provide the individuals concerned with the opportunity to mitigate their death sentences. (See also, Andrew Novak’s ‘The death penalty and the new constitution in Kenya’, Africa Law Today).

The unanimous decision by the Court of Appeal, declared the judges, also applied to other offences that in theory carried a mandatory death sentence such as treason and robbery with violence (Section 296/2 Penal Code).

The death penalty in Kenya: what’s going on?

The Kenya Forum would like to know what magistrate Ndeda was thinking of in handing down a death sentence for a crime involving Sh2,000. If the decision was based on the idea that the sentence was mandatory under Kenyan law, then Ndeda needs to be re-trained in the light of the decision by the Court of Appeal.

The Forum would also like to know what happened to the study into the effectiveness, or otherwise of the death penalty on deterring crime. After all, it has been some four years since President Kibaki called for the study.

Finally, the Kenya Forum asks, is their any point for any court in Kenya to deliver a death sentence in a country that has not carried out such a sentence in the last quarter of a century and which now accepts international standards of human rights that in effect bans its use?