An Analysis of Article 26 (3) on the death penalty in the Kenyan 2010 Constitution

Abstract

This study analyses article 26 (3) on the death penalty in the Kenyan 2010 constitution. The Kenyan judiciary continues to sentence convicts to death based on the formulation of the right to life in article 26(3) of the constitution and the death penalty provisions in the penal code. However, the rare occurrence of actual execution has made many view Kenya as a de facto abolitionist state. Moreover, the death penalty though codified is applied only through sentencing and not execution. Using the theories of contextualism, constitutionalism and human rights, this study examines the extent to which the death penalty complies with the constitution, particularly the bill of rights. Through qualitative analysis of case law and secondary sources, the study found that Kenya’s de facto abolitionist status allows for violations of constitutional provisions on the right to life, human dignity, access to justice and freedom and security of the person. This study concludes on the extent to which the death penalty is antithetical to the constitution. To harmonize the penal code with the constitution the study recommends that the death penalty should be legally abolished.