INTRODUCTION

Kenya is de facto abolitionist, having not carried out an execution since 1987. The country has a posture receptive to abolition, but the political uncertainties of a new constitutional framework, endemic corruption, and continued fallout from the 2007 election violence, including a now-concluded International Criminal Court investigation and increased ethnic mobilization, suggest that death penalty abolition is not a priority for current political elites. Nonetheless, the country's active judiciary, new Supreme Court, and membership in the East African Community have created new opportunities for opponents of capital punishment. The death penalty was known in precolonial Kenya, though the frequency of executions varied by locale. The modern death penalty, however, is overwhelmingly a product of colonial rule. The scale of political executions during the state of emergency in the 1950s was unparalleled in the history of British colonialism. Eroding democracy after independence led to an overburdened and underresourced criminal justice system and politicized prosecutions. Following a 2002 transfer of power, however, Kenya has successfully moved to a relatively open and competitive political environment, punctured by ethnic and intercommunal tensions that have surrounded national elections.

THE DEATH PENALTY IN PRECOLONIAL KENYA

As elsewhere in Sub-Saharan Africa, use of capital punishment varied widely in Kenya, especially outside the Islamic coastal zone. The penalty was typically used when other forms of economic compensation were inadequate. Other forms of punishment in precolonial Kenya could involve banishment or ostracism for crimes of witchcraft and sorcery, as among the Abanyole people of the Luyha ethnic group in Western Province, or even beating or execution of witches, as among the Kisii in Nyanza Province. The death penalty was known among the Luhya people. An off ender was typically tried and, if convicted, given a life sentence or executed, although lesser sentences or acquittals were possible.5 Even today, the Kenyan legal system continues to recognize compensation for victims of crime, although the amount is limited by law.