Daily Nation

KENYA: Death row convicts' horrid lives

With a justice system that is grindingly slow and prison conditions described by a State rights body as inhuman, questions are being asked whether the death penalty should not be scrapped from the statute books.

John Mburu Njoroge gazes at a former inmate, expressionless, his eyes almost sinking in their sockets. "I am dead, hanged."

An inmate at the Kamiti Maximum Prison, Nairobi, he was sentenced to death in 1985. 3 years later, he appealed against the sentence. The appeal has not been heard, 15 years later.

On Wednesday, he was visited by a friend, a former colleague, Alexander Kimongo. Kimongo's fortunes turned for the better when his appeal against death sentence succeeded last December.

Now he is visiting as a raia, civilian, accompanied by this writer.

Justice, prison warders tell Mburu, is slow to come. Some people he calls human rights activists visit him regularly and often complain that he is being killed when he is probably innocent.

"But what do they do? Nothing. It ends there," he says.

Indeed, innocent or not, the sympathy ends there. Every day is hell. Uncertainty. Kenyan law does not specify a time within which the sentence should be carried out.

"Please help me to have the appeal finalised," he tells his visitors.

He is chained to another death row convict, Ephraim Karanja, who is also waiting for his appeal to be heard. "Look, is there any life left (in me)? Do I look like I will survive, especially when I am taunted by the askaris that the hangman will be coming tomorrow?"

File E/CC App No 729/88 gathers dust in the High Court while the petitioner, Mburu, wastes away. He is not alone. Karanja (Kenya Court Application No 49/91) is waiting for justice too, 11 years after he filed an appeal. Peter Namemba Okango (Application No 531/96) is in his 6th year, waiting for the appellate judge to decide his future.

Of the 3,584 Kenyans convicted of murder and robbery with violence between 1963 and 1987, only 280 have been hanged. Within the period, 1,755 had their death sentences commuted to life imprisonment.

By January 5, 2001, at least 1,925 inmates were on death row. Of this, 1,777 were waiting for their appeals to be heard. Only 146 had their appeals finalised and were waiting to be executed. The last hanging was in 1987, when 1982 coup plotters Hezekiah Ochuka and Pancras Oteyo Okumu were executed. Since then, a sort of de facto moratorium has been operational.

Human rights activists argue that letting people live in uncertainty is inhuman. "It dehumanises people, makes people live in fear," says Amolo Otiende, the secretary, International Commission of Jurists, Kenya Chapter.

Debate has been raging about capital punishment, the archaic rule that demands an eye for an eye. It is about retribution. Should murder be punished by murder, or should those who use violence to rob be killed? For a while, authorities and human rights crusaders have bickered on the issue. Twice in 10 years, Parliament has defeated motions by Imenti South MP Kiraitu Murungi to have this penalty abolished. The Standing Committee on Human Rights, a State department that investigates human rights abuses, has also campaigned for the scrapping of the death penalty from the statute books.

"It is repugnant to human dignity and the precepts of human rights to keep inmates on death row for so long in inhuman conditions," the committee said in a report.

Judges opposed to such killing have their hands tied. Law schools teach that the law has to be followed to the letter, and for Kenya's case, the death penalty is a deterrent.

Some proponents claim deterrence is the objective - put a price tag on death and potential killers will think twice.

Others argue that hanging a person is useless, hardly a deterrent and morally repulsive. "It is totally against human rights and it should be abolished. It is time to rethink about it," says criminal lawyer Pravin Bowry.

Moralists also argue that a state that hangs an individual is just as brutal as the criminal. What will be the drive to kill someone who has killed another? Whom are you rehabilitating in this case?

"In courts, judges and magistrates have taken the penalty casually because the convicts will not be killed after all," says Mr Bowry. He is among lawyers who have consistently opposed the penalty.

Accuracy of the judicial system is what fuels the abolitionists, placing them on a collision course with proponents of the penalty.

Reports of disappearance of court files have been common in the past. Moreover, police have framed up individuals and in many cases, failed to carry out thorough investigations. Thus many people have been wrongfully convicted. Corruption has also undermined the penal and judicial process.

Indeed, in many cases, the principle of "unequivocally guilty" has been flouted because of such flaws. And this perhaps explains the high incidence of success of appeals. "Trials leading to death penalty are often deeply flawed. Confessions are made under torture," adds Mr Bowry.

Mburu may be innocent or guilty. But were he to be innocent, he may have been convicted on a flawed law that denied him legal representation. The fraud may have begun at the police station and ended up in court.

As authorities dither on this issue, death row inmates die in Kamiti, Naivasha, Shimo la Tewa, Kodiaga, and King'ong'o. The way of the law has refused to be the way of justice. Investigations reveal that between August 12 and August 19, 2002, about 400 death row inmates in Block G at Kamiti Prison staged a hunger strike, protesting against poor food and lack of medical attention.

Ten days later, one of them - Kinyanjui - died, they claimed. However, the prison's spokesperson, Mr John Odongo, discounted the report.

Dispute often dogs prison deaths. Inquiries are often met by excuses, half-truths and outright lies. During an investigation into deaths at Shimo la Tewa by the human rights committee, inmates said 14 prisoners had died but official prison records indicated 9. A combined death register from the clinic and prison records showed 17 inmates had died. In official documents, 207 inmates died between 1997 and 2000.

Reports of the horrid prison conditions are hardly new. Last June, President Moi was handed a report that detailed the deaths of nine prisoners at Shimo la Tewa the previous month.

During investigations, the committee says it encountered "critically ill inmates who ought to have been in the hospital receiving specialised care, but who were instead in cells."

Mburu has waited 15 years to get medicine from relatives, for his appeal case is yet to be mentioned. He hardly knows how longer he will wait.

The rights of death row convicts, like other inmates, are abused. Owing to bad working conditions, prison warders have been forced to live off inmates. "They take the little ration available, they also take the medicines. And they beat us badly," said an inmate.

In Kamiti, an 8 by 8 foot cell meant for 4 inmates accommodates 16. Shimo la Tewa, built in 1953 to accommodate 708 inmates, now has 2,329. Kamiti has about 3 times its capacity. At any 1 time last year, Nairobi remand held 3,200 against its 1,000 capacity, and Kakamega 1,070 against a capacity of 350. But the problem goes beyond just accommodation, food and healthcare.

Prisons is among the most underfunded departments despite its crucial role. The total current budget is Sh2.6 billion but only Sh400 million is allocated for food for more than 40,000 inmates. This translates to Sh28 per prisoner a day. Drugs are allocated Sh2.5 million. Inmates reportedly earn a paltry Sh170,000. The government is yet to explain why it placed a moratorium on hanging. One explanation is that authorities have found it difficult to hire a hangman because not many people are interested in that job. It can be recalled that government had to advertise in Botswana seeking a hangman.