Names and Registration No.

1. Amina Sugal LSG201-C002-0022/2020

CRIMES ASSIGNMENT

In the face of the supreme court decision in Francis Muruatetu and Another V R,
wherein the supreme court held that the mandatory death penalty for murder is
unconstitutional, should the offences of murder and manslaughter be abolished and
replaced with a single offence of unlawful homicide?

A single Offence of Unlawful Homicide?

There has been concerted global lobbying for the abolition of capital punishment. In 2017
the Supreme Court of Kenya passed a landmark death penalty decision, 1 a decision which
was then envisioned to be the herald of a new dawn in Kenya’s criminal justice system.
In this case the petitioners were murder convicts who were on death row. The crux of
their petition was determination on the constitutionality of the mandatory nature of the
sentence which was imposed upon them by the High Court and affirmed by the Court of
Appeal. In finality, the Supreme Court of Kenya declared mandatory death sentence as
set out in section 204 of the Penal Code as unconstitutional. However, death penalty has
not yet been abolished in Kenya; it is still a lawful legal penalty. However, no execution
have been carried out in Kenya since 1987, when Hezekiah Ochuka and Pancras Oteyo
Okumu, leaders of the 1982 coup d’état attempt, were hanged in treason. There in wake
to reform the Capital offences in Kenya, there have been suggestions to abolish death
penalty, as adopted by most of the countries in Europe and one of the suggestions is to
merge the offence of murder and manslaughter as unlawful homicide.

Ever since the abolition of the death penalty as a punishment for murder in England,
Republic of Ireland and Wales, arguments have arisen in favour of merging the offences
of murder and manslaughter into a single crime of unlawful killing. Proponents of such a
change claim that this would encourage a greater number of guilty pleas, reducing the
incidence of lengthy murder trials and releasing overburdened court resources.
1
Francis Muruatetu & Another V R, eKLR 2017
 In the majority of murder trials the issue is not whether the accused killed the victim, but
whether in killing he intended to kill or cause serious injury to the victim.2 Put simply,
whether the case is one of murder or manslaughter. The mandatory life sentence for
murder is frequently held responsible for this situation, with the rationale that the
mandatory sentence serves as a deterrent to those wishing to plead guilty, encouraging
them to take their chances that a verdict of manslaughter will be returned at the trial. It is
further argued that the stigma associated with the term “murder” makes courts reluctant
to convict for “murder” opting instead for the lesser charge of “manslaughter”.
Proponents of a single offence argue that a simpler definition of unlawful killing would
overcome many of these difficulties resulting in a more expeditious system for ensuring
that justice is served.

However, in spite of the above criticisms, it may be argued that the distinction still
serves an important role, in the criminal Justice Systems. The importance of the term
“murder” in today’s society as a term to denote the most heinous and culpable type of
killing. It felt that the distinction was necessary to ensure “appropriate labeling” of
criminal offences. However, proponents of a single offence argue that the term “murder”
attaches too great a stigma for the vast range of crimes covered. In criticizing mandatory
sentence, Ivana Bacik, has observed that:

“The category of murder is therefore over-inclusive in fact. Cold-blooded and

However, if one were to abolish the distinction between the two offences, the category
into which heinous murders would fall, already criticized for being too broad, and would
become far more extensive. The only distinction between the various forms of killings
would be drawn out at sentencing.

Where there has been a plea of guilty to the charged offence, which is an argument for
the proponents of the single offence of murder and manslaughter, accused persons would
be likely to claim that the killing was not intentional in an attempt to reduce their
sentence. Similarly, they might claim that the factual circumstances surrounding the
killing reduced their culpability. For example, it could be claimed that there was
provocation or duress. Creating a new crime of “unlawful homicide” in place of murder
and manslaughter does not, however, mean that the court will not still have to decide
what type of homicide it was. Is it a planned, premeditated homicide? Or is it a homicide
2
Charleton, McDermott, Bolger, Criminal Law, (Butterworth's, Dublin, 1999) at page 495.
3
Bacik, “If it Ain't Broke”— A Critical View of the Law Reform Commission Consultation Paper on
Homicide: the Mental Element in Murder, (2002) 12(1) ICLJ 6.
where the perpetrator acted in self defence but using an excessive degree of force? Is it a
homicide where the victim died because of reckless conduct by the defendant? The
answer to such questions will determine what the appropriate sentencing range is to be.

Proponents of the single offences of homicide, also argue that, merging murder and
manslaughter in a single offence of unlawful homicide on the basis that it would
significantly reduce the backlog of cases, cut down on legal and other administrative
costs and reduce the suffering for victims’ families.4 In the jurisdiction that uses the juries
in fact finding in the criminal system, Implicit in this argument is the assumption that the
issue of what type of homicide has been committed can be decided by the judge alone at
a sentence hearing rather than by a jury. This help to reduce the time used in determining
if the offence will amount to murder or manslaughter, in which the judge will use the
facts of the case and determine in less time as an unlawful homicide. This will as a result
reduce backlog of case in criminal justice system, especially this will help the criminal
justice system in Kenya, if the single offence of unlawful homicide is adopted, since jury
are not used and the judge will in less time determine the offence as an unlawful
homicide, as a result it will reduce, backlog of cases, reduces legal fees and reduce
suffering in the victims’ families as the accused will meet the ends of justice.

Lastly, many other jurisdictions have reviewed the distinction between the two offences,
opting for its continuing operation. Suggestions have been made to increase the scope of
the offence of murder, to have more defined categories of murder and manslaughter akin
to the approach taken in many jurisdictions, for example in the United States Of America,
which has the what is collectively known as homicide, of which first-degree murder and
felony murder are the most serious, followed by second degree and third degree murder,
followed by voluntary manslaughter and involuntary manslaughter which are not as
serious, and ending finally in justifiable homicide, which is not a crime. Also there is
abolishment of mandatory death sentence present in many other common law systems.
However, the general consensus has been that the distinction, which is “deeply imbedded
in our social and legal culture”, should remain.5

CONCLUSION
In conclusion, the distinction between murder and manslaughter creates a crucial
distinction between intentional and less culpable forms of homicide. Merging the two
offences would simply move the much-disputed question of intention to the sentencing
stage of the process, removing the role of the prosecutors and stake-holders in fact
finding, also in the jury-using jurisdiction. This would create a difficult situation for the
prosecution who would be unable to predict what factual matrix would be presented at
sentencing and for the judiciary who would increasingly be faced with divergent
accounts. This would require substantial resources at all stages of the criminal justice
system, the very thing that proponents wish to avoid. However, the suggestion to reform
4
< http://www.nuigalway.ie/law/papers.html)>
5
Law Reform Commission of Victoria, Homicide, Discussion Paper No. 13, March 1988
the penalty of murder in Kenya which is cruel to humanity and at least provide for life
imprisonment and also the criminal justice system may also provide different forms of
murder and manslaughter to provide the range of sentence.

BIBLIOGRAPHY
1. James Hamilton, Director of Public Prosecutions, Ireland International Society for
the Reform of Criminal Law Conference 15 July 2008, Dublin
2. Bacik, “If it Ain't Broke”— A Critical View of the Law Reform Commission
Consultation Paper on Homicide: the Mental Element in Murder, (2002) 12(1)
ICLJ 6.
3. Charleton, McDermott, Bolger, Criminal Law, (Butterworth's, Dublin, 1999)