The United Nations recently dispatched its special investigator on extra-judicial killings to Kenya. His mandate concerns various allegations ranging from ordinary murders to state-supervised executions. The report is awaited this week. Is the problem of extra-judicial execution actually on the increase or is it a case of  perceptions generated by media clamourings?

During the pre-liberal media era, public ignorance about sensitive information was ensured by repressive actions ranging from state propaganda to silencing opponents sometimes permanently through clandestine disappearances. In  the advent of liberal media and burgeoning information, truth is abundant. New legislation has consequently emerged on one hand to protect fragile reputations and delicate positions from leaky words through severe penalties for felonious allegations under the Defamation Act. On the other hand, to safeguard credible informants from arbitrary and excessive retaliation, in 2006 Kenya’s Parliament enacted a Witness Protection Act.

It may be argued that the best safeguard to the right to life is upholding the equal right to be adjudged according to similar procedures. These confer judicial punishments. Ethical standards which restrict punishing suspects upon verdicts of guilty on spurious or inadequate evidence demand strengthening. While it is often emphasized that justice delayed is justice denied, the opposite is equally true: Lengthy trial proceedings permit justice to emerge and avoid the spectre of extra-judicial mob-justice upon impulsive responses.

Militia gangs like the Sabaot Land Defence Forces in Mount Elgon, which killed some 650 and displaced 150,000 others tie up loose ends to avoid detection of their extra judicial killings. They believe that they have genuine historical grievances which the government fails to address. On the other hand, the state itself generates moral panic among the middle classes by propaganda to justify shoot-to-kill policies to exterminate informal sub-cultures like SLDP’s leader Matakwey.

Similarly, by portraying the youthful, dreadlocked militia, known as Mungiki as undeserving of equal procedural due process, since they mercilessly dismember traitors, the Minister for Internal Security attempted to justify the police’s Kosovo massacre of indiscriminate killings in mid-2007 at Mathare Valley slums in Nairobi. Extra-judicial outrage or vengeance must be condemned as uncivilized since it is fraught with victimizing mistaken identities and subjectively excessive punishments. This undermines the Rule of Law which should be based on the objective principle that it is better to free nineteen guilty people than falsely convict or punish a single innocent one although section 7 of the Kenyan Penal Code presumes all individuals to be innocent until and unless proven otherwise.

There are differences between the procedural safeguards for violent robbery suspects and murder suspects in Kenya. The lawyers who represent them are correspondingly constrained to observe different ethical standards to the extent that the procedures are different. .

The law on capital punishment in Kenya is not homogeneous. There are four capital offences: Murder, robbery with violence, treason and unlawful oathing. The latter has fallen into disuse having been enacted specifically to deal with the Mau Mau terrorism during the 1950's. Treason is prosecuted before magistrate's courts and its procedures are essentially equivalent to those for robbery with violence.

The procedures governing murder trials are special in six respects: 1) accused persons are tried before an experienced high court judge instead of the subordinate court. 2) the trial judge is accompanied by three lay assessors whose opinion though not binding, must be considered. 3) The accused is prosecuted by a professional state counsel instead of a policeman. This has ethical implications since professionals are constrained to consider both exonerating as well as inculpating evidence and not to seek conviction at all costs. 4) People accused of murder are entitled to an appeal before three court of appeal judges. Robbery with violence convicts are entitled to two appeals, first to the high court before two judges, and finally to the court of appeal, the highest court in the land, on matters of law only. 5)Accused persons in murder cases are traditionally furnished with an advocate at the expense of the state, whereas in violent robbery cases the accused must engage his own counsel for the trial, and  first appeal. 6) Murder trials were for a long time preceded by committal proceedings before a magistrate to determine whether sufficient evidence exists before hauling the suspect to plead to murder charges.

There are suggestions that this should be repealed and possibly replaced by the plea bargaining. Committal proceedings enable the accused person to learn the evidence which shall be led against him at the trial, to avoid the element of surprise. Violent robbery proceedings before a magistrate are not preceded by committal proceedings. There is no committal bundle of documents containing witness statements furnished to an accused person. He is ambushed at the trial.

In summary, the ethical standards required of lawyers before murder cases is tremendously different from that required in robbery with violence cases. Robbery with violence cases have inferior procedural safeguards. It is easier to secure a conviction on charges for violent robbery than for murder, yet the punishment is the same. Frequently therefore, because of this anomaly, in circumstances involving both incidence of homicide and robbery, the State will often prosecute for the "lesser" robbery with violence than for the more serious murder element in order to circumvent the rigorous procedural safeguards accorded to murder accuseds. It follows that because the procedure for robbery with violence is similar to that of any other criminal offence, it obviously demands different ethical standards from that of a murder case. Surprisingly, the Kenyan constitutional court is unable to recommend that the protections accorded to murder suspects be extended to robbery with violence trials.

In robbery with violence cases, there are no special ethical demands upon lawyers or advocates appearing for the accused person or the government. But in murder cases, there are six special ethical provisions which confer greater protection on the accused. Whether this appears discriminatory or not, the Kenyan court of Appeal has ruled that it is not unconstitutional. Most curiously of all they hold that the state execution of capital punishment does not amount to torture, cruel inhuman or degrading treatment or punishment as prohibited by section 74 of the Kenyan Constitution. Because of general recognition that the death penalty is generally out of date, no Kenyan executions have been conducted in Kenya since 1985. Instead they remain unexecuted without having remissions or pardons. By contrast, a landmark decision by the Ugandan Supreme court this month declared that holding convicts on death row for more than three years amounts to torture.

The logic behind extra-judicial killings lies in  general double standards inherent in the judicial killings. The police officers and the public whose civic duty is to arrest and arraign suspects in court lack confidence in the equal and consistent application of the death penalty law. They perceive that some corrupt or incompetent magistrates facilitate the escape of known crooks, resulting in a miscarriage of justice. The freeing of known offenders who are a menace to the peace and security of law abiding citizens leads police to take the law in their own hands to correct the perception that “crime pays.” This is why the police choose to short-circuit the lengthy process of justice and instead resort to actuarial, ad hoc or random executions designed to sustain the misconceived and erroneous policy that doing what appears good, in the short-term, is better then doing what is right, in the long-term.

By Charles A. Khamala,

A Nairobi based Advocate