NAIROBI – In a bid to modernize and humanize Kenya’s Penal Code, Chief Justice Martha Koome has tabled two significant bills before parliament. These proposed amendments challenge long-standing sentencing structures, with a focus on adopting human-rights-friendly language and aligning the Penal Code with contemporary legal standards.
The two bills, titled Penal Code (Amendment) Bill 2023 and Criminal Procedure Code (Amendment) 2023, primarily aim to revamp penalties meted out to capital offenders. In a substantial departure from existing laws — which have their roots in the 1930s colonial-era statutes imposed by Britain — the bills propose to limit the maximum sentence for murderers, sex offenders, and those eligible for life sentences to 30 years.
Historically, Kenya’s legal structure has provided for the death penalty in cases of murder, violent robbery, or treason. Koome seeks a substantial departure from this punitive measure, advocating for transformative legal reforms.
A significant alteration proposed is in Section 112A of the Penal Code, where the term “manslaughter” would be replaced by “second-degree murder.” This subtle shift in terminology has profound implications in the realm of legal judgments and penalties.
Furthermore, in what appears as a sweeping reform, Koome advocates for the removal of a vast range of sections, from 66 to 200, within the principal Act, Section 4 of the Penal Code. Sections 220 and 222 would also be amended, replacing “for life” sentencing with a cap of “thirty years.”
Chief Justice Koome has also laid out clear definitions surrounding first-degree murders. Under the proposed changes, a person would be held guilty of first-degree murder if they cause death through actions like poisoning, grievous harm, arson, treason, kidnapping, and other premeditated violent actions. This list also encompasses acts such as terrorism, espionage, sexual offenses, burglary, and robbery.
Central to Koome’s proposed reforms is the intention to humanize the Penal Code. She envisions a more inclusive language, especially in reference to individuals with intellectual and psychosocial disabilities. Additionally, the bill aims to safeguard children who could have been sentenced to death, shifting them away from indefinite detention. There’s also a proposed shift in the burden of proof for specific offenses, transitioning it from the accused to the prosecution. Petty offenses, historically used to target marginalized groups, are set for repeal.
Another commendable goal of the bill is to extend legal protections to intersex individuals interacting with the criminal justice system, ensuring that their unique needs and rights are recognized and protected.
Parallel to the Penal Code amendments, the Criminal Procedure Code (Amendment) 2023 Bill seeks a comprehensive overhaul. The primary objective here is to harmonize it with the provisions of the Magistrate’s Courts Act, 2015. It aims to streamline the transfer procedures of cases between magistrates, reduce the duration of suspended sentences, and do away with outdated regulations surrounding peacekeeping and good behavior.
These proposals, if adopted, will mark a historic shift in Kenya’s legal landscape, ushering in an era where justice aligns more closely with human rights and contemporary societal values.