Violent crime is a serious offence in Nairobi bringing fear, trauma and sometimes death to its many victims. However, the current law on the subject has far-reaching language that ensnares misdemeanor offenders and seriously raises the question whether the punishment always fits the crime. Many end up serving life in prison for as little as snatching a phone.Kenya’s judicial system is, in some instances, harsher than the archaic Old Testament Law of Moses, which advocates ‘an eye for an eye, a tooth for a tooth’. The disproportion between crime committed and punishment rendered is so great that it is often easier to get away with murder than with robbery. The threshold for what makes a crime “robbery with violence” is so low that a lot of small-time thieves find themselves on the death row for snatching a phone.

In the period 2004-2007 alone, 15,265 people were convicted of robbery with violence. That is almost 4,000 people every year, condemned to die (which in the Kenyan Judicial system becomes life in prison, not actual execution). One grueling example is Pauline Amana, a 31-year old former beauty queen from Lodwar, who was sentenced to death for robbery with violence. Once crowned Miss Langata, Amana has been in prison for 12 years now. According to Amana, her mistake was to be at the wrong place, at the wrong time and with the wrong people. She was in the company of her boyfriend when he robbed a shopkeeper in Lodwar town of a day’s earnings. But in the eyes of the law, Amana had fully satisfied one of the legal requirements for a crime to qualify as robbery with violence.

And for that she was sentenced to death. “Any person who commits robbery is liable to imprisonment for fourteen years,” says Gerry Gitonga, a Nairobi lawyer and a partner at Azania Legal Consultants. “But, as prescribed in section 296/2 of the penal code, if the offender in the robbery is armed with a dangerous or offensive weapon or instrument, or if he is in the company of one or more other people or if immediately before or after the robbery, he wounds, beats, strikes or uses any other personal violence to any person, then the crime is robbery with violence and the offender is liable to the death sentence.” In Amana’s case, all she needed to do was be in the company of the offender.

“The law does not distinguish between anyone who would choose to spare the life of his victim and anyone who would indiscriminately kill any number of victims while carrying out his robbery,” says Gitonga. For a person to be charged with murder and sentenced to death, a death has to have occurred, but with robbery with violence, death is immaterial, sometimes even actual robbery is immaterial – as in the case of attempted robbery with violence – yet the sentence is still death. In other of words, two men who snatch a mobile phone from their victim, and another two men who walk into a bank, shoot everyone dead and walk away with millions of shillings, if caught, both parties would be charged with robbery with violence and all of them sentenced to death.

“I strongly feel that there needs to be proportionality between crime committed and penalty attracted. This is a law whose philosophy is really a case of the rich Vs the poor. To me, this death sentence, especially for those accused of a robbery with violence is too severe. You take away my Nokia 3310, the State takes away your life!” Says Gerry Gitonga. Another kicker is the fact that anyone charged with murder is entitled to legal representations provided by the state; a privilege that is not granted those who are charged for robbery with violence.

In late 2011, John Swaka, the Nairobi legal officer for CLEAR (Christian Legal Education Aid and Research) went to the High Court, ‘acting on behalf of persons charged in any subordinate court in Kenya with a capital offense attracting the death penalty,’ he had said in his affidavit. In his submissions, Swaka, had argued that those accused of ‘capital robbery’ had a unique position in Kenya’s criminal justice system in that they have their liberties restricted to the same extent as all other capital offenders, but did not enjoy the same trial system. He also observed that the elements of the robbery with violence crime create a very low threshold for conviction. And seeing that robbery is very common, it meant that a lot of people faced the death penalty, but without any legal representation.

“For a criminal, the case against them would be easier if they commit murder than if they just robbed,” says Swaka. “It would be easier to get away with murder than with robbery with violence.” Swaka had sought to compel the High Court to rule that all robbery with violence cases would henceforth be heard in the High Court where legal representation at the State’s expense would be provided. But in the ruling delivered on 18 January 2013, Swaka’s petition was dismissed. The high court ruled that it did not have the jurisdiction to decide that robbery with violence cases were to be heard only by the high court and not by the Magistrate courts.

And so the status quo is maintained. As for Pauline Amana, her death sentence has since been commuted to life in prison by a presidential decree. But in Kenya, life in prison means just that: A life in prison until death without the option of parole.