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A COMMENTARY ON DEATH PENALTY: DISCREPANCY
BETWEEN LAW AND SOCIAL ORDER
……………………………………………………….
BY
Boaz Amoro Nyakeri
Bachelor of Laws, (LL.B)
Africa Nazarene University
E-mail: boaznyakeri@rocketmail.com
August, 2012

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“We will advocate the old demand with new arguments. It is in accordance with our understanding of the
spirit of the European Human Rights Convention and the other international documents on human rights,
…what else is the execution of the death sentence, if not an inhuman and degrading treatment? …What
else is the pronouncement and the execution of the death sentence, if not a subjection to cruel treatment
or punishment? What else is the waiting for the death sentence and the execution for human being, if not
the worst torture? He who rejects torture and any inhuman or degrading treatment of persons has as well
to reject the death penalty.”
Dr. Christian Broda, Austrian Federal Minister of Justice

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Introduction
While there may be other forms of punishment present, capital punishment still remains a
subject of great controversy which has inherently subjected the matter to result into
logger-heads. The crux of this commentary has had an overheated debate on whether or
not capital punishment, in this regard death penalty, is tenable but has fallen into prey
due to divergent ideas of the society and also conflict of universal laws and norms.
Beginning from this note, this piece serves as a pointer to the conditions of the zenith
and nadir of death penalty. It will also base its analogy on different jurisdictions and
lastly, be an extension of presenting recommendations needed.
Sir Rupert Neale Cross (15th
June 1912 – 12th
September 1980) a prominent English lawyer
and academic, defined capital punishment as the „infliction of pain by the state to
someone convicted of an offence‟. If the above is anything to go by, then capital
punishment is a relative term of which in essence is any form of punishment and not
necessarily death penalty. However, the evolution of law has changed the definition of
Sir Rupert Cross and construed it too mean death penalty.
Historical Background of Death Penalty
The legal merit of death penalty has a long serving history. This is arguably the most
ancient and archaic method of treating offenders. In a nutshell, death penalty, in the
name of retribution, began in the late 1750 BC, strongly advocated by King Hammurabi.
In his own estimation, he was of the opinion that since an offender caused suffering to
the victim, they too should suffer in the same way. He coined this from the doctrine of
„an eye for an eye‟ whereby the premise provided that the punishment was equally the
same in order to „balance the scales.‟ It was further warned that no punishment should
go beyond limit, no more than an eye for an eye, neither a tooth for a tooth, and
accordingly, a one life and no more.

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The retributive mode of punishment was for a very long time prevalent in England to as
late as the 19th
century where there were over 200 offences which could render a person
to be put into death roll. The first debate in bid to abolish the death penalty arose 1820
and the House of Commons were in support of the opinion but the tables turned against
them due to the divergent views off the House of Lords.
At this era, the death penalty was inflicted on both the young and the old people and
this is perhaps one scenario which infers that criminal law was still underdeveloped. Two
instances that demonstrated this were; firstly, in 1808 whereby a boy of 7 years old and
his sister aged 11 were hanged at Lynn. Secondly, in 1833 a boy aged 9 was condemned
to death at the Old Bailey for stealing two penny, worth of children paint.
Famous Practices of Death Penalty
The general consensus is that death penalty is archaic in nature. Theologians argue that it
was Biblically practiced. Under Davidic Monarchy, biblical Israel institutionalized the
practice of stoning convicts to death. Consequently, the Babylonians hold another
gruesome history on this regard and this is when they lived under the leadership of King
Hammurabi.
In Athens, under the code of Drakon, death was administered in ancient Greece with
great brutality and it was the probable consequence in almost every offence including
men who were idle.
Rome is also an equal example whereby death penalty was prevalent but this was mainly
inflicted on slaves and other non-citizen residents for a variety of offences.
Back in Africa, it was not exceptional. In Nigeria, there was beheading among the Yoruba
and Edo speaking groups. In East Africa, a robust illustration is vested in Uganda,
Tanzania, Kenya and Rwanda. Among the Banyankore and other kindred people of
Western Uganda, Rwanda and North-Western Tanzania, death was the solution for
premeditated homicide and for premarital pregnancy. Similarly, among the Basoga, a
thief who stole bananas would have ripe bananas inserted to his rectum until some
internal organs were raptured and then he would be left to bleed to death. Lastly, in

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Kenya, during the pre-colonial era the Kikuyu provided for death for murder and by
poisoning for witchcraft or for habitual stealing.
The Case for Death Penalty
The following are arguments which have been put forward in favor of the death penalty:
that death penalty is deterrent in nature that if it is abolished, the criminals might come
back to the society thus making it more dangerous to the public; that in most cases, those
who are sentenced to death are normally those beyond the hope of rehabilitation and
thus imprisoning them would be loss of wastage of taxpayers‟ money; hat it is more
humane to hang a person than to imprison him for the rest of his life; that with the
abolition of death penalty, the lives of law enforcement personnel such as police men
and prison guards will be put in danger that without the death penalty, the society
would return to lynching of even petty offenders; and, that death penalty was
sanctioned by God, (Genesis 9:6 and Exodus 21: 23).
The Case against Death Penalty
Arguments against death penalty are as follows: That death penalty is not a punishment
at all because the victim does not live to learn to avoid wrong-doing; that death penalty
has no deterrent value to justify its retention; that the use of death penalty in cases of
murder is illogical since true murderers are usually few; that death penalty is contrary to
the highest ideals of civilized communities because it is cruel, inhuman, unkind and
degrading; that for those who are Christians and theologians admit that death penalty
contravenes God‟s commandment of „Thou shall not kill‟; that death penalty brutalizes
the society and those who carry it out; that the society cannot rid itself of murderers by
becoming a murderer itself; that death penalty is self-defeating in that public executions
dulls human sensitivities and harden criminals; that hanging is a hangover from barbaric
past and symbol of imperfection and hypocrisy of political leaders; that the death
penalty is evil and commonly, it is the wrong persons who get hanged like the poor or
ignorant members of minority groups and/or those who are politically ineffective; that in
the act of putting thee offender into death, it is his family and friends who suffer for the

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crime they never committed; and, that death penalty is a blatant violation of
fundamental human rights.
The Decline of Death Penalty
At this period, it is arguable that death penalty had reached its peak. Consequently, it
faced a massive decline around the world generally. This is due to the vibrant
humanitarianism and enlightment combined to reduce its application with the hope for
abolishing it completely. Another contributing factor is the introduction of the European
rule in Africa. For instance in 1972, Uganda provided the death penalty in cases of
treason, murder, kidnapping but with intent to murder and robbery using deadly
weapons. Similarly, death penalty was abolished in the Portuguese territories of Angola
and Mozambique as early as 1870, and that was three years after being abolished in
Lisbon.
Kenya is a practical example. The last practice of death penalty was done in 1980s.
However, it was not formally abolished since there were laws providing for it. In the
prior laws, corporal punishment was provided for but in recent legislation, it has been
tentatively abolished. In the case of Godfrey Ngotho Mutiso v. Republic [2010] KLR, the
Court of Appeal of Kenya held that mandatory death sentences are unconstitutional. See
also the case of Republic v. Alexander and Another KLR.
The Prospect of Death Penalty
Even though many countries are working towards abolishing death penalty, there are
others which still practice the same. The list, among others, include; China, Saudi Arabia,
and the United States of America. They have not abolished or suspended death penalty
but have diversified other methods to substitute firing squad and hanging like
electrocution, lethal injections and gas chambers.
The rate under which laws are being amended and repealed gives a looming that death
penalty will eventually be eradicated. For instance in Kenya, the Penal Code (Chapter
63, Laws of Kenya) that provides for death penalty in specific offences like Murder
(Sections 204 and 206), Treason (Section 40) and Robbery with Violence (Section 296)

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have been argued to contravene the Constitution (Article 26), that provides for right to
life. Human rights experts have taken a similar approach of fighting against the practice.
Conclusion
In summation, it is important to assert that death penalty is first drawn from
Hammurabi‟s laws of „an eye for an eye‟, and this was well supported by other
philosophers such as Immanuel Kant. However, other critiques like Hegel argued against
this law that, „an eye for an eye makes a man blind‟. Hegel, in this context, meant that
the society was in a position to lose more by executing a person than by reforming the
person.
Similarly, in the case of Daher (1969) 53 of Cr. App R. 490, Salmond J in his ruling
advocated for death penalty, however the International Human rights Law is against
that.
Lastly, the main goal of death penalty was premised on „balancing the scales‟, however
due to the enlightment and evolution, the goal is to „reform the offender‟. This therefore
suggests that there are other forms which can be applied to achieve reformation and they
include:
Deterrence; this can either be individual or general. Individual deterrence is aimed
towards specific offenders. For instance, corporeal punishment would be aimed at taking
the offender through too painful experience that could deter him from the inclination to
commit the same offence in future. The main aim of individual deterrence is to impose
an adequate penalty to discourage the offender from criminal behavior. General
deterrence on the other hand aims at the society at large. By imposing a hash penalty on
those who commit offences, others in the society would be discouraged from committing
the same offences based on the severe consequences seen.
Incapacitation; this is designed to keep criminals away from society so that the public is
protected from their misconduct. It is commonly achieved through prison sentences
today. This position was best illustrated in the case of Ndurugo s/o Karuga v. Republic
(1950) EACA 50 whereby the sentence was reduced from 10 years imprisonment with
hard labour to 5 years and the subsequent argument put forward in justifying that was

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that the accused if let loose would commit more serious offences as he had 21 previous
convictions. The sentence was therefore intended to incapacitate/ disable him to ensure
security to the community‟s property.
Rehabilitation; this is perhaps the most preferred method of reformation today. It aims at
transforming an offender into a valuable member of society. Its primary goal is to
prevent further offence by convincing the offender that the conduct was wrong. For
instance, a victim who committed murder under the influence of alcohol and confessed
to a drinking problem at trial may be required to attend a rehabilitation program.
Restitution; this is a victim oriented theory of punishment. The goal is to repair, through
state authority, any hurt inflicted on the victim by the offender. For instance, one who
embezzles will be required to repay the amount that was improperly acquired.
Restitution is commonly combined with other main goals of criminal justice and is closely
related to concepts in the civil law.
<Compiled in reliance with discussions and lecture contributions>
“My philosophical conviction against the retentionist doctrine springs from the spiritual-secular reflection
that lacking a human life, even with the subtle rites and sanction of the law, is retributive barbarity and
violent futility, bankrupt of deterrent dividends….Do remember that the blow of capital sentence often
falls on the socially and economically backward, on the brave revolutionaries and patriotic dissenters, on
the derelicts and desperates, on the lowliest and the lost and on those who have turned delinquent
because society, by its continued maltreatment and environmental pollution, has made them so….”
The Honourable Mr. Justice Krishna Iyer of The Supreme Court of India