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July 13 2011 | KENYA

Kenya

A woman-magistrate against death penalty

 
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DAILY NATION

Death penalty cruel, JSC told

A magistrate who is seeking to be promoted to a judge has criticised the death sentence, terming it a breach to the right to life.

While basing her argument on the Bill of Rights in the new Constitution, the Mombasa Senior Principal Magistrate Ms Lilian Mutende told the Judicial Service Commission (JSC) that the death penalty “dehumanises” and takes away people’s rights.

“The death penalty dehumanises people and in my opinion, it is unconstitutional not discretional,” she said, referring to instances where the Court of Appeal has ruled that death penalties are discretional.

She told the Commission that while each case was unique, she would not condone punishment by death.

Right to life

But the panel inquired why she thought it was unconstitutional when Article 26 of the constitution says that every person has a right to life “except to the extent authorised by this Constitution or other written law.”

She said she did not find an outright interpretation on death sentence in the constitution.

Death sentences are provided for in section 25 of the Penal code with crimes such as murder or robbery with violence being punishable by this kind of penalty.

The Commission accused female judges of favouring female litigants in child custody cases. Ms Mutende however said that women were not always favoured as decisions were based on the best interests of the child.

“If the father of the child is a better person (than the mother), then he’s the best to take custody,” she said.

Deal with ‘big fish’

Being the 12th interviewee, Ms Mutende argued that she would courageously deal with the ‘big fish’ and torture of suspects.

She cited a case where she sentenced a politician to three days in civil jail for failing to appear in court.

Earlier on, JSC had asked Mr Chemitei Kiplang’at, the 11th interviewee to explain why a client wrote to the Advocates Complaint Commission about him.

In defence, the Eldoret-based high court advocate said that the complainant was never his client.

He further explained that his client, a Ms Maritim, bought a tractor with a friend using joint financial statements after which they received a logbook with two names, although it was his client who intended to buy the machine.

Ms Maritim’s friend later sued her for stealing the tractor. Mr Chemitei clarified that he only represented Ms Maritim and not her friend.

Twenty-six successful candidates will be selected from a pool of 115.

The vetting of High Court judges continues until 10th of next month in an effort aimed at establishing a new judiciary capable of delivering justice.

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