The recent sentencing of Ruth Kamande and Erastus Odhiambo has made me question whether there is any uniformity in sentencing when it comes to capital punishment.
Both cases involved domestic violence — albeit the facts differed in one way or another. The two overriding issues for me are that both defendants were first-time offenders and claimed to be remorseful.
However, one case led to the death sentence and the other a minimum prison term of 20 years. It is quite challenging to try and understand what criterion was used to reach such differing sentences.
Ruth’s matter was constantly in the news — print, visual and digital formats — much more than that of Erastus’s or any other murder case going on at the time. This is a case that was unsafe from the word go, given the level of exposure it got in the media.
The influence ‘trial by media’ has in a case cannot be underestimated. The judges and prosecutors are human and, clearly, also malleable to the pressures imposed by the views of the masses.
There were many armchair ‘experts’ who constantly took to social media to share their views on the Kamande case. That in itself left the offender exposed and vulnerable. One cannot help but wonder whether miscarriage of justice was inevitable in a case that had been tried and concluded elsewhere prior to the formal court hearing.
The issue of domestic abuse is one that also has many foggy areas in as far as the law is concerned. In the minds of most perpetrators, a slap here and there is alright. However, it is a matter that is much more complicated. It has branches of physical violence, emotional and psychological abuse, coercion and control, financial abuse and many other forms of abuse to be added on as we learn more about the matter.
Provocation, when it comes to domestic violence, is one issue that has been problematic. However, a judge worth his salt should determine, all factors considered, the level of provocation involved.
To many victims or survivors of domestic abuse, provocation could be in form of a slow burner of emotional and psychological abuse. In other cases, it could be one instance of provocation that could lead to a fatality in a fit of anger.
In my opinion, provocation in homicide cases would need to be carefully scrutinised so that it meets the threshold of intention to murder. Death is an emotive issue, much more so in situations of domestic violence. Nonetheless, it is important to rise above the broad understanding of murder and look at the minutiae of details that led to murder in that situation.
In some cases, homicide in domestic abuse has been linked to mental health impairment of perpetrators. It is, therefore, also crucial to fully grasp the mental state of the offenders before, during and after the incident to determine whether, indeed, the issue at hand would qualify to be murder, manslaughter or assault.
The mental impairment factor is also a rather challenging one. There is the whole notion of temporary insanity, which is possible in cases of provocation. However, there is also a clear case of having an offender who may, indeed, have had mental health impairment such as schizophrenia, bipolar disorder, clinical depression, psychopathy or sociopathy.
Mental health in a domestic violence setting is one area that has not been fully understood and needs attention to save many more lives from deranged violent partners.
In the cases of Ruth and Erastus, the difference in sentencing for nearly similar offence is of concern and has the potential to lead to further miscarriage of justice. For a young offender of murder, and a remorseful one for that matter, it is better to set charges that consider the fact that she would have time to reflect and be deterred from repeating the crime. In that, they can be rehabilitated to become useful members of the society.
The two cases challenge the fairness in the due process of the law. There is a need to review our sentencing guidelines to avoid further confusion and injustice. Death is the ultimate sentence and, in case of mistakes, it is one difficult sentence to undo.
The other disparity is in the confusion as to whether capital punishment should even be handed down in Kenya, when there has been consensus for it to be outlawed. It is more than 30 years since the last person was hanged in Kenya. It is also simply unjust to let people wallow in perpetual state of anxiety once the death sentence is passed but spend years waiting to be executed.
There is a need for urgent reform to review the death sentence and give clarity to judges and magistrates as it has the greatest potential of leading to miscarriage of justice. In itself, the death penalty should be outlawed. It is barbaric and inhumane.