Last week the Court of Appeal upheld the death sentence in a murder case appeal, as it has done time and again, knowing only too well that the sentence of death in reality will never be carried out.
The rights of death row convicts has surfaced once again in a highly publicized case in India and which case is likely to have a great bearing to the Kenyan legal scenario.
Three Indians were convicted for the murder of the late Prime Minister, Rajiv Gandhi in the year 1991, 23 years ago. Three successive Presidents refused, neglected or omitted to deal with the Pleas of Mercy made under the Presidential Prerogative of Mercy.
In a landmark ruling the Supreme Court of India set aside the sentence of death and substituted it with life imprisonment and enunciated interesting legal dicta.
The Supreme Court held, “In India even an accused has a de facto protection under the Constitution and it is the Court’s duty to shield and protect the same. Therefore, we make it clear that when the judiciary interferes in such matters it does not really interfere with the power exercised under Article 72/161 but only to uphold the de facto protection provided by the Constitution to every convict including death convicts.”
It continued to say, “Certainly, a series of Constitutional Benches of this court have upheld the Constitutional validity of the death sentence in India over the span of decades but these judgments in no way take away the duty to follow the due procedure established by law in the execution of the sentence like death sentence passed lawfully, the execution of the sentence must also be in consonance with the Constitutional mandate and not in violation of the constitutional principles.”
And with that the Supreme Court commuted the death sentences of the death convicts to life imprisonment.
The decision also addressed a number of issues pertaining to the treatment of death row convicts.
It made it obligatory that where the death sentence is enforced a post mortem must be carried out and reports made available to the families of the deceased.
The issue of the mental state of the convicts was also addressed. Regular mental health evaluations on all death row convicts and appropriate medical care to those in need should be given. The court stated that the mental health of the convict must always be considered to determine whether they are in fit physical and mental condition to be executed.
The convicts also have to be furnished with copies of their court papers and judgments since these documents are the important in the preparation of the convicts’ appeals and mercy petitions.
The court also pointed out that the convict must be notified in writing of rejection of a mercy petition; and that a copy of the rejection must be made available to the convict and a minimum 14 days execution notice be given to the convict and the family.
Nearer home, the Ugandan case of Kigula and others v the Attorney-General lifts the lid on the amount of human suffering that can be caused by delayed justice.
In the Ugandan case, some 417 death row prisoners petitioned a Ugandan constitutional court for, among others, a declaration that inordinate delay in executing their death sentences violated their constitutional protection against cruel, inhuman or degrading treatment.
One of the petitioners, Ben Ogwang, had been on death row for twenty years. In his uncontroverted evidence, he gave a grim picture of life on death row.
He said that death row prisoners lived in cold and overcrowded cells. They urinated and defecated in open chamber pots in the cells in the presence of their colleagues. They also took their meals of poor quality, quantity and timing in these same cells.
The prisoners, he further said, could not sleep because the lights in the cells were left on all nights. This left them in a permanent state of tiredness, which virtually reduced them to walking zombies.
He said that the prisoners were not informed of when an execution would take place. They kept guessing. Consequently, if a guard came and stopped outside a condemned prisoner’s door, the prisoner immediately felt his bowels open up and ended up soiling himself.
When the prisoners got sick, he said, the hospital staff were reluctant to give them medical attention. They said that since the prisoners were going to be hanged anyway, there was no need to waste scarce drugs on them.
As a result, he said, many prisoners died of diseases related to mental and physical anguish, physical hardship, poor feeding, depression and many other causes.
The court found that the circumstances indeed amounted to cruel, inhuman and degrading treatment.
The rights of death row or even life sentence convicts in Kenya will undoubtedly resurface in legal circles and the commonwealth jurisprudence is likely to have greater application.
Matters of the death penalty, commuting the same and the Commissioner of Prisons failing to carry out the death sentence for over 25 years are matters which are likely to be argued soon in a constitutional court.
It is a pity the Court of Appeal and indeed the Supreme Court have opted not to deal with the matters despite the matters being of great public interest.