Vous êtes sur la page 1sur 22

Murder and Mercy: Capital Punishment in Colonial Kenya, ca.

19091956
Author(s): Stacey Hynd
Source: The International Journal of African Historical Studies, Vol. 45, No. 1, Toward a
History of Violence in Colonial Kenya (2012), pp. 81-101
Published by: Boston University African Studies Center
Stable URL: http://www.jstor.org/stable/23267172
Accessed: 05-06-2017 15:23 UTC

JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted
digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about
JSTOR, please contact support@jstor.org.

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at
http://about.jstor.org/terms

Boston University African Studies Center is collaborating with JSTOR to digitize, preserve and extend
access to The International Journal of African Historical Studies

This content downloaded from 186.60.183.85 on Mon, 05 Jun 2017 15:23:17 UTC
All use subject to http://about.jstor.org/terms
International Journal of African Historical Studies Vol. 45, No. 1 (2012)

Murder and Mercy: Capital Punishment in Colonial Kenya,


ca. 1909-1956*

By Stacey Hynd
University of Exeter (sJiynd@exeterxic.uk)

I sometimes wonder whether in this country capital punishment is not inflicted on


natives more often than is strictly necessary to attain the ends of justice.1

District Commissioner, Nyeri, 13 October 1921.

While military force, structural violence and alliances were crucial to the spread a
maintenance of colonial hegemony across British Africa, so too were ideas of the "rule o
law" and British "justice."2 As a 1934 enquiry into the administration of justice in East
Africa noted: "It is the duty of Government to civilise and to maintain peace and good
order, and this can only be done by the introduction of British concepts of wrong-doin
Revenge and retribution as methods of punishing criminals must go, and crime must
regarded first and foremost as an offence against the community if the peoples of thes
territories are to advance in enlightenment and prosperity."3 British colonial regimes
placed a great emphasis on the importance of courts as the cornerstone of British "justi
and "law and order," with civilization being equated with the rule of law.4 Many historian
however have questioned official commitment to the principles of the "rule of law
arguing that it was but a fa5ade behind which to conceal the everyday practices of coloni

* Many thanks to Richard Waller, David M. Anderson, and Brett Shadle for their support and assistan
in locating evidence, and to the anonymous peer reviewers of this journal for their insightful comments.

1 Acting DC Nyeri to Secretary of Native Punishment Commission, 13 October 1921, PC/CP/6/4/3,


Kenyan National Archives, Nairobi [hereafter KNA].

2 See Diane Kirkby and Catherine Colebourne, eds., Law, History and Colonialism: The Reach o
Empire (Manchester: Manchester University Press, 2001); Laura A. Benton, Law and Colonial Cultur
Legal Regimes in World History (Cambridge: Cambridge University Press, 2002); Martin Chanock, "T
Law Market: The Legal Encounter in East and Central Africa," in WJ. Mommsen and J.A. de Moor ed
European Expansion and the Law: The Encounter of European and Indigenous Law in Nineteenth an
Twentieth Century Africa and Asia (Oxford: Berg, 1992), 297-305.

3 Great Britain, Report of the Commission of Inquiry into the Administration of Justice in Kenya
Uganda, and Tanganyika Territory in Criminal Matters (hereafter Bushe Commission), May 1933, an
Matters Arising out of the Report, Cmd. 4623 (London: HMSO, 1934), s. 162,57.

4 See Martin Chanock, Law, Custom and Social Order: The Colonial Experience in Malawi an
Zambia (Cambridge: Cambridge University Press, 1985); Mahmood Mamdani, Citizen and Subje
Contemporary Africa and the Legacy of Late Colonialism (Princeton: Princeton University Press, 1996), 1
Copyright 2012 by the Board of Trustees of Boston University.

This content downloaded from 186.60.183.85 on Mon, 05 Jun 2017 15:23:17 UTC
All use subject to http://about.jstor.org/terms
82 Stacey Hynd

exploitation.5 Crime historian Martin Wiener however argues that historians should not
underestimate the complexities and sometimes paradoxes of events on the ground in
individual colonies. These complexities become particularly apparent in the arena of
colonial law and punishment, as historians seek to uncover the workings of courts in their
search for "truth" and "justice."6 In Kenya, as in other colonial territories, there were
persistent tensions within the colonial edifice between the desire for "good governance"
and "civilised" rule, and a belief that violence was necessary to achieve control and
development.7 Across British Africa many colonial officials displayed a strong cultural
commitment to British "justice" and the "rule of law," which, while not making physical
punishment impossible, made it ethically problematic.8 Others had few such qualms.9
Courtroom trials of murder suspects and the use of the death penalty forced colonial states,
and their legal and administrative functionaries, to openly discuss such tensions, not in
abstract legal or political theory, but over the body of the condemned man.10

Capital punishment formed the lethal apogee of the judicial and penal violence
inflicted upon African subjects by the colonial government in Kenya, but to date there have
been few efforts to investigate this violence, or to situate itand the deaths it inflicted
within the wider nexus of colonial power, with the notable exception of David Anderson's
analysis of the Mau Mau rebellion, Histories of the Hanged.11 Any discussion of state
killing in Kenya would be incomplete without reference to the 1,090 executions that
occurred in 1952-57 during the Mau Mau rebellion; an unprecedented level of judicial
violence in Britain's twentieth-century empire. One aim of this article is to further
contextualize Anderson's recent analysis of the Mau Mau hangings by tracing the path of
the death penalty through Kenya's colonial period to try and understand how, and why, the
state choose to so ruthlessly deploy "the extreme penalty of the law" during the State of
Emergency. The death penalty is here analyzed as a lens through which to view colonial
strategies of law, order, and social control, drawing on the rich archival record of 1,108
murder trials, with transcripts from 1939-1957 in particular, alongside legal papers from
the Ministry of Legal Affairs and Attorney-General series in the Kenyan National

5 Ranajit Guha, Dominance without Hegemony: History and Power in Colonial India (Cambridge, MA:
Harvard University Press, 1997); Catherine Colebourne, "Crime, the Legal Archive, and Post-Colonial
Histories," in Barry Godfrey and Graeme Dunstall, eds., Crime and Empire 1840-1940: Criminal Justice in
a Local and Global Context (Devon: Willan Publishing, 2005), 92-105.

6 Martin Wiener, An Empire on Trial: Race, Murder and Justice under British Rule, 1870-1935
(Cambridge: Cambridge University Press, 2009), 1-7.

7 Mamdani, Citizen and Subject.

8 Steven Pierce, "Punishment and the Political Body: Hogging and Colonialism in Northern Nigeria, in
Steven Pierce and Anapama Rao eds., Discipline and the Other Body: Correction, Corporeality and
Colonialism (Durham: Duke University Press, 2006), 190-91.

9 See Richard Meinertzhagen, Kenya Diary 1902-1906 (London: Oliver and Boyd, 1957).

10 This is not simply gendered language; in the vast majority of cases, the accused and condemned
were men.

11 David M. Anderson, Histories of the Hanged: Britain's Dirty War in Kenya and the
(London: Weidenfeld and Nicholson, 2005).

This content downloaded from 186.60.183.85 on Mon, 05 Jun 2017 15:23:17 UTC
All use subject to http://about.jstor.org/terms
Capital Punishment in Colonial Kenya, ca. 1909-1956 83

Archives, Nairobi. Unlike other penal measures, capital punishment is an expressly


political penalty: the final decision on whether a condemned man would hang lay not with
a judge but with the governor of the colony, who could choose to "let the law take its
course" or to exercise his mercy and commute the sentence. The gubernatorial use of
mercy will be investigated here to illustrate the political and administrative rationales
behind state use of the death penalty, before moving on to investigate the rituals and
practice of hanging itself. The tensions inherent in colonial conceptions of the "civilizing
violence" of judicial punishments will be explored through pressures for penal reforms and
tensions surrounding demands for public executions in Kenya. Finally, the relationship
between these routine usages of capital punishment and the exceptional deployment of the
death penalty during the State of Emergency will be investigated. Ultimately capital
punishment was not the only severe sanction available to the colonial government in its
attempts to combat violent crime and unrest; it rather formed a pinnacle in a continuum of
state violence and punitive measures. As such, its use can only be fully understood in
conjunction with the wider "coercive networks" of colonialism that traversed the various
branches of Kenyan state and society.12

Legislating for Death: Capital Punishment in the Kenyan Legal System


Capital punishment was widely regarded as the "ultimate deterrent" against violent crime
and social disorder, both in Britain and its colonies.13 In practice however, its use was
highly contested, particularly in the colonial context. Debates between the Colonial Office
in London and the colonial government in Nairobi, between the executive and judiciary
within Kenya, and between Nairobi and district commissioners on the peripheries of the
colonial state, reveal that the law was an arena of contested authority not just between
colonizers and their African subjects, but within colonial states themselves.14 While many
officials argued that the death penalty was an effective method of restoring order and
imposing British law on African populations, others argued that lethal violence was
unsuitable for the punishment of Africans, whose attitudes towards justice and the taking
of human life were markedly different from European views on the subject.15 In Kikuyu
custom, as in many other African cultures within Kenya, homicide was normally a matter
for compensation, except in cases of habitual theft or causing death by poison or
witchcraft, which Jomo Kenyatta noted "was looked upon as a crime against the whole

12 Taylor Sherman, "Coercive Networks: Perspectives on Recent Developments in the Study of


Coercive Networks in Asia, Africa and the Caribbean," History Compass 7,3 (2009), 659-77.

13 See VA.C. Gatrell, The Hanging Tree: Execution and the English People 1770-1868 (Oxford:
Oxford University Press, 1994); Great Britain, Royal Commission on Capital Punishment 1949-53: Report
Presented to Parliament by Command of Her Majesty, September 1953, Cmd. 8932 (London: HMSO, 1953)
(hereafter Gowers Commission); Wiener, An Empire on Trial.

14 Kristin Mann and Richard Roberts, "Introduction: Law in Colonial Africa," in Kirstin Mann and
Richard Roberts eds.. Law in Colonial Africa (London: James Currey, 1991), 3.

15 Charles Clifton Roberts, Tangled Justice: Some Reasons for a Policy of Change in Africa (London:
Macmillan, 1937).

This content downloaded from 186.60.183.85 on Mon, 05 Jun 2017 15:23:17 UTC
All use subject to http://about.jstor.org/terms
84 Stacey Hynd

community, and the penalty was death by burning."16 Death was apparently commonly
only imposed as a last resort in cases of offenders who had made themselves dangerous
beyond the limits of endurance of their fellows by the persistence or gravity of their
crimes.17 However, the killing of members of other ethnic or social groups could be
accepted for reasons of social defense, resource acquisition (such as during cattle raids),
revenge, or prestige.18 Such discrepancies between British and African conceptualizations
of offenses warranting death raised significant tensions that colonial officials had to
attempt to mediate in their decisions about exactly whom was executed for their crimes,
and in what manner.19

The situation regarding the application of the death penalty was rendered more
complicated in Kenya as the legal system was originally based upon the Indian Penal Code
(IPC), which was held to be less legalistic than English common law and thus more easily
applied by administrative officers in African situations. Under the IPC, anyone charged
with culpable homicide (murder) could alternatively be found guilty after trial of lesser
offenses including homicide not amounting to murder, causing grievous hurt, and causing
hurt.20 Death was a discretionary sentence for murder, alongside transportation for life plus
a fine.21 The IPC remained in force in East Africa until 1930, thereafter it was replaced by
territorial Penal Codes and Criminal Procedures Ordinances.22 Under the new Penal Code
a mandatory death penalty was introduced for the most serious crimes based on English
statutes: treason, instigating invasion, and murder. After a series of "Black Peril" scares,
and following the precedent of other settler territories, the colonial government also
introduced a discretionary death penalty for the crime of rape in 1926 in the aftermath of
the "Kijabe Outrage," centered on the rape of an elderly settler farmer, Julia Ulyate 23 Rape

16 Jomo Kenyatta, Facing Mount Kenya: The Tribal Life of the Kikuyu (1938; reprint, New York:
Random House, 1995), 230. See also Blood Money, AG/52/259, KNA.

17 James S. Read, "Kenya, Tanzania and Uganda," in Alan Milner, ed., African Penal Systems
(London: Routledge and K. Paul, 1969), 104.
18 See discussions in Law and Order: Crimes of ViolenceSamburu Murders 1933-6,
PC/RVP/6A.17/44; R.A J. Maguire, "The Masai Penal Code," Journal of the Royal African Society 28, 109
(1928), 12-18.

19 Customary sanctions were replaced by formal colonial law in British courts, although "blood
money" compensation payments were enforced in a few cases before 1913.

20 Henry Francis Morris, "English Law in East Africa: A Hardy Plant in Native Soil," in Henry Francis
Morris and James S. Read, Indirect Rule and the Search for Justice (Oxford: Clarendon Press, 1972), 120;
Legal Sentences, AP/1/666, KNA. These provisions result in much lower conviction and execution rates
before 1930 in relation to reported killings.

21 See East African Protectorate, Criminal Procedures Ordinance No. 6 of 1914, s302. Imprisonment
was later substituted for transportation.

22 Morris and Read, Indirect Rule and the Search for Justice; Brett Shadle, '"Changing Traditions to
Meet Current Altering Conditions': Customary Law, African Courts and the Rejection of Codification in
Kenya, 1930-60;' Journal of African History 40,3 (1999), 411-31.

23 See Rape Supreme Court [SC] CC 60/26 R v. Giathi s/o [son of] Robero. AG/52/393; Death Penalty
for RapeCriminal Amendment Order 15/26, PC/NZA/3/17/18/2, KNA. See also David M. Anderson,

This content downloaded from 186.60.183.85 on Mon, 05 Jun 2017 15:23:17 UTC
All use subject to http://about.jstor.org/terms
Capital Punishment in Colonial Kenya, ca. 1909-1956 85

remained a capital crime in Kenya until 1955, but only three men appear to have been
executed for this offense, due to procedural difficulties in prosecuting rape and unease at
the application of the death penalty in such cases.24

The vast majority of capital convictions were mandatory death sentences for
murder.25 From the extant archival records, excluding Mau Mau-related offenses, there
were some 1,108 capital cases between 1908 and 1956, which resulted in 459 persons
being executed.26 In addition to this, during the Mau Mau State of Emergency some 1,574
Kikuyu were sentenced to death between 1952 and 1957, with 1,090 going to their deaths
on the gallows.27 Kenya has been regarded by many commentators as one of the most
punitive British colonies in Africa, a reputation reinforced by the brutality of the Mau Mau
years. As Branch has demonstrated, it had the most strongly punitive justice system in East
Africa, with high levels of imprisonment and flogging.28 And yet, outside of the Mau Mau
years, Kenya did not have the highest rate of execution: overall roughly 40 percent of
capital convictions resulted in execution. Neighboring Tanganyika and Uganda routinely
executed more people, and, for most of the inter-war period, Kenya's rate of execution was
roughly on a par with that of the Gold Coast and below that of England 29 Part of the
reason behind this comparative restraint in the use of the death penalty, it can be argued,
lies in the "incumbent violence" of the evolving colonial order, with structures of
imprisonment, widespread flogging, and restrictions on African social and geographical
mobility enabling the state to feel relatively secure: the very structures that would later
enable State of Emergency responses against Mau Mau.30 Further research is required to
substantiate this argument however. One key reason for the comparative restraint in capital
punishment before 1952 that can be analyzed here however is the use of judicial mercy.

"Sexual Threat and Settler Society: 'Black Perils' in Kenya, c. 1907-1930," Journal of Imperial and
Commonwealth History 38,1 (2010), 47-74.

24 Read, "Kenya, Tanzania and Uganda," p. 124; Capital Punishment for Rape, AP/1/1845, KNA;
Mwangi s/o Mukorora and Kirongothi s/o Nguro CC46/50, MLA/1/367, KNA. Kenya Colony, Annual
Report on the Administration of the Colony during the Year 1928 (Nairobi: Government Publisher, 1929).

25 Colony and Protectorate of Kenya, Penal Code (1930), s. 24-5, 187; Criminal Procedure Code
(1930) s. 312-6. Pregnant women or youths under sixteen years of age at the time of the offence were both
categories spared the death sentence under statute: see Death Sentences on Young Persons 1915, AP/1/934,
KNA, and Death Sentences on Women 1934, CO 323/1283/4, National Records and Archives, London
(hereafter NRA).

26 Figures compiled from KNA, MLA, and AG series, plus Kenya Colony annual administrative,
judicial, and prison reports. Due to discrepancies between these records and the incomplete nature of the
evidence available these figures are subject to revision.

27 Anderson, Histories of the Hanged, 6-7.

28 See Daniel Branch, "Escaping the Carceral Archipelago: Imprisonment and Colonialism in Kenya, c.
1930-52," International Journal of African Historical Studies 38,2 (2005), 239-66.

29 Stacey Hynd, Imperial Gallows: Capital Punishment, Violence and Colonial Rule in Britain's
African Territories (unpublished D.Phil, thesis, University of Oxford, 2007); Gowers Commission, 31.

30 Bruce Berman, "Bureaucracy and Incumbent Violence: Colonial Administration and the Origins of
the Mau Mau Emergency in Kenya," British Journal of Political Science 6,2 (1976), 143-75.

This content downloaded from 186.60.183.85 on Mon, 05 Jun 2017 15:23:17 UTC
All use subject to http://about.jstor.org/terms
86 Stacey Hynd

Tempering "Justice" with "Mercy": The Political Calculus of Commutation


After sentencing and appeal, a capital conviction was sent to the governor sitting in
Executive Council for final disposition. The governor was empowered to exercise the royal
prerogative of mercy on behalf of the British Crown, which allowed death sentences to be
confirmed, pardoned, or commuted to a sentence of imprisonment.31 Significantly, this
system of mercy placed the principle instrument of legal terror directly in the hands of
political authority.32 While in England mercy acted as "a selective instrument of class
justice," in Kenya it also became a selective instrument of racial justice: the bureaucratic
calculus of its decisions was shaped by shifting landscapes of power and racialized
stereotypes of African behavior, as well as by the necessity of maintaining "white prestige"
through the self-ascribed benevolence of British justice.33 From the 1,108 non-Mau Mau
related cases surviving in the archival record between 1908 and 1955, 459 persons were
executed and 347 saw their sentences commuted. The remainder were declared unfit to

stand trial, guilty but insane or saw their sentences overturned on appeal. Overall, some 31
percent were granted mercy.

Figure 1. Source: KNA, Ministry of Legal Affairs and Attorney General's Department Records, 1908-55.

Commuted sentences ranged from six months to life imprisonment, although most were between five
and fifteen years. Capital PunishmentCommutation of Capital Sentences 1952-3, CO 859/443, NRA.

32 See Carolyn Strange, ed., Qualities of Mercy: Justice, Punishment and Discretion (Vancouver:
University British Columbia Press, 1996).

33 Douglas Hay, "Property, Authority and the Criminal Law," in Douglas Hay, Peter Linebaugh, John
G. Rule, E.P. Thompson and Carl Winslow, Albion's Fatal Tree: Crime and Society in Eighteenth-Century
England (London: Penguin Press, 1977), 48; Roger Chadwick, Bureaucratic Mercy: The Home Office and
the Treatment of Capital Cases in Victorian Britain (London: Garland, 1992). See also Robert V. Turrell,
'"It's a Mystery': The Royal Prerogative of Mercy in England, Canada and South Africa," Crime, Histoire
and Socie'te'/Crime, History and Societies 4, 1 (2000), 83-101; Stacey Hynd, '"The Extreme Penalty of the
Law': Mercy as an Aspect of State Power in Colonial Nyasaland, c. 1903-47," Journal of Eastern African
Studies 4,3 (2010), 542-59.

This content downloaded from 186.60.183.85 on Mon, 05 Jun 2017 15:23:17 UTC
All use subject to http://about.jstor.org/terms
Capital Punishment in Colonial Kenya, ca. 1909-1956 87

Although governors were not legally required to state the reasons for their
decisions, in the trial records available, mostly from 1939 to 1957, the rationales behind
mercy can be inferred from the case details, judges' recommendations, and confidential
reports prepared by district officers on the background to a case.34 From this evidence
mercy in Kenya can be theorized as operating on three different levels: first, as an arbitrary
modulation of judicial severity, contingent upon a governor's personal sentiment regarding
a case.35 But, while arbitrary decisions can account for some of the commutations granted
by governors, it is inconsistent with the operation of colonial governance strategies to
believe that there were no rational or calculated motivations behind the granted reprieves.
At a second level therefore, it can be seen that mercy operated according to established
principles (largely following metropolitan precedent) as to which crimes were suitable for
mercy and which deserved the exaction of the extreme penalty of the law. Finally, mercy
functioned as an expression of the politics of colonial rule, shaping justice to fit both
colonial conceptions of African behavior and requirements of maintaining British
authority. The violence of capital punishment, both symbolic and actual, was seen as a
necessary component of efforts to civilize the African and create a modern colonial
society: mercy therefore helped to establish and police the boundaries of imperial
citizenship and subjecthood. While in the "pacification" era before 1910, the death penalty
was primarily targeted at those who opposed the establishment of British rule, by the
interwar period it was increasingly focused on combatting "criminal" and "deviant"
behaviorsalthough in practice, the courts first had to decide exactly what forms of
African violence fitted into these categories.

In terms of established principles of mercy, Kenya's penal system was based on


didactic retribution and deterrence rather than reform, with the maintenance of law and
order being the primary concern 36 The crimes most threatening to this order, at a village or
national level, were thus those punished most heavily. Interracial murderswhile rare
were the most likely category to result in execution, such as where an African was
convicted of killing a European.37 Indian men were also particularly likely to be executed
for their crimes due to the dangerous psycho-social space they occupied in the minds of
British judgesbeneath "civilized" European society but above the perceived "savagery"
of Africans: those who escaped the gallows did so through legal technicalities and

34 Governors were required to justify their actions to the Colonial Office if they rejected the advice of
their judges and Executive Council. Penal-Death Sentences 1940, Procedures for the Prerogative of Mercy,
CO 859/37/11, NRA; Execution of Murderers, Memorandum January 1947, DC/ISO/3/10/38, KNA.

35 See Muthembi s/o Mutue CC112/50, MLA/1/414, KNA, where Governor Mitchell spared a
convicted wife-murderer against the advice of his council and judge.

36 David Killingray, "The Maintenance of Law and Order in British Colonial Africa," African Affairs
85, (1986), 411-37; David Killingray "Punishment to Fit the Crime? Penal Policy and Practice in British
Colonial Africa," in Florence Bernault, ed., Enfermement, Prison et Chatiments en Afrique: du 19e sitcle a
Nos Jours (Paris: Karthala, 1999), 181-204.

37 Tharachitio s/o Fargue alias Gate Bargu, CC190/45, MLA/1/238; John Namunyu Shibeka CC257/51,
MLA/1/428, KNA. For a comparative exploration of inter-racial murder in the British Empire, see Weiner,
An Empire on Trial.

This content downloaded from 186.60.183.85 on Mon, 05 Jun 2017 15:23:17 UTC
All use subject to http://about.jstor.org/terms
88 Stacey Hynd

prolonged appeals as they could afford effective defense counsels.38 The murder of state
servants was also perceived as an inexcusable offense against colonial law and authority.
With anti-colonial pressures increasing during the 1940s and early 1950s, it was frequently
remarked that firm measures must be taken against offenders who killed policemen,
headmen or chiefs, whether this was a result of a political motive or personal grievance.39

Outside of direct challenges to social and racial hierarchies, premeditation was


perhaps the most damning factor in any murder. Murders adjudged "deliberate,"
"determined" or demonstrating "malice aforethought" were routinely sent to the gallows.40
Murders that were described as "brutal," resulting from extreme or frenzied violence and
multiple wounds, were rarely candidates for mercy unless they were linked in trial
narratives to mental instability or insanity.41 Killings committed for pecuniary motives,
while relatively rare, were deplored by Africans and colonial officials alike: increasingly
firm measures were taken against murders committed in the furtherance of theft, robbery or
housebreaking in the later colonial period, indicating the law's foundational aim of the
defense of property.42 Murders committed in urban areas, particularly around Nairobi,
were often viewed as a result of detribalized immorality, and harshly punished, as with the
case of a Nyasaland man who was wandering drunkenly around Kibera in 1944 looking for
a prostitute when he stabbed an elderly Nubian man to death.43 Intra-African murders
linked with sexual assaults and spousal murders frequently resulted in execution,
particularly when judicial attitudes against domestic violence strengthened in the 1940s.44
These murder trial records can reveal compelling facts about the levels and arenas of
violence in Kenyan communities: the majority of murders appear to have stemmed either
from fights between members of the same family or kin network, or between friends, with
over one third of the archived cases resulting from domestic violence and around 15
percent broadly categorized as "drunken quarrels." The profiles of many of these murders
support arguments that gender and generational relations were under severe strain during
the colonial period 45

Mohamed Shah s/o Lai Shah, MLA/1/4; Nek Alam CC68/20, AG/52/428; Mota Singh, MLA/1/16,
KNA.

39 See Ndiranga s/o Muthora CC244/48, MLA/1/317, KNA.

40 Commutation of Death Sentences 1925-40, Yego arap Baramonga, AG/52/139.

41 Sabakaki s/o Tifani, AG/52/139; Mwangi s/o Nganga CC14/54, MLA/1/798, KNA.

42Kangethe wa Mberiri and Kalungu ole Silange CC121/40, MLA/1/63; Musa s/o Ndeda CC183/52,
MLA/1/449, KNA.

43 Africa Siana s/o Gibson, MLA/1/214, KNA.

44 Stacey Hynd, "Fatal Families: Narratives of Spousal Killing and Domestic Violence in Murder
Trials in Kenya and Nyasaland, c. 1920-57," in Emily. S. Burrill, Richard L. Roberts, and Elizabeth
Thornberry, eds., Domestic Violence and the Law in Colonial and Postcolonial Africa (Athens: Ohio
University Press, 2010), 159-78. On rape-related murders, see Judge Thacker, 2 August 1940, Sibacha
Lematan CC170/39, MLA/1/36, KNA.

45 See Tabitha Kanogo, African Womanhood in Colonial Kenya, 1900-50 (Athens: Ohio University
Press, 2005); Richard Waller, "Rebellious Youth in Colonial Africa," Journal of African History 47, 1
(2006), 77-92.

This content downloaded from 186.60.183.85 on Mon, 05 Jun 2017 15:23:17 UTC
All use subject to http://about.jstor.org/terms
Capital Punishment in Colonial Kenya, ca. 1909-1956 89

Overall however, officials like the district commissioner of Nyeri cited in the
epigraph believed that most murders committed by Africans were unpremeditated,
"committed on the spur of the moment, in the heat of a quarrel or under the influence of
drink," and were therefore undeserving of the death penalty: "[d]eath is generally only
semi-intentional, a man throws a spear or cuts at his opponent with a knife without
considering the consequences and when he finds that he has killed a man he is usually
smitten with remorse and quite often gives himself up."46 This was the essential
contradiction of capital punishment: if most murders were unpremeditated, then how could
the threat of punishment, lethal or otherwise, prevent them? Commutation of such cases
occurred so frequently that the 1933 Bushe Commission enquiry into the administration of
justice in East Africa debated abolishing the mandatory death sentence for murder
altogether and substituting alternative sentences including "blood-money" compensation,
communal fines and life imprisonment, before finally deciding that the existing laws
relating to murder should stand.47 Women, youths and the elderly were also routine
recipients of gubernatorial mercy as their crimes were judged less challenging to the
colonial order, and British cultural norms resisted state use of lethal, physical violence
against such people.48 As Ocobock discusses elsewhere in this issue, corporal punishment
was widely regarded as the appropriate penalty for youth. According to the archival record,
while forty-one women were charged on non-Mau Mau related capital offenses before
1956, only one women was executed; Margerina wa Kori, who stabbed her neighbor Eliza
to death in a quarrel after a prayer meeting, while Eliza was carrying her young child 49 In
general, colonial constructions of African women as subordinate to men and legal minors
informed court narratives which depicted female accused as "weak-minded" and not fully
responsible for their actions before the law, allowing a "chivalry of mercy" to operate.50
That the majority of women charged with murder were constructed in the courts as victims
of domestic violence only compounded the tendency towards judicial leniency, particularly
during the interwar period when there was a growing focus on women's welfare.51

While these categories largely followed established British precedents, other


categories where authorities preferred to award mercy were formed in response to African
sociocultural contexts, due to an epistemological unease with the apparent rationales

46 Acting DC Nyeri to Secretary of Native Punishment Commission, 13 October 1921, PC/CP/6/4/3,


KNA.

47 Bushe Commission, s. 196-215, pp. 71-80.

48 For youths, see Death Sentences on Young Persons 1915, AP/1/934; Kiptalam arap Temuge
CC49/54, MLA/1/835, KNA. For elderly accused, see Kipalo s/o Ngozo CC77/43, MLA/1/177, KNA.

49 R v. Margerina wa Kori (woman) 1927 SS24/27, AG/52/316, KNA. Even in this case, officials later
commented that the decision should have been appealed and overturned.

50 Kanogo, African Womenhood, Stacey Hynd, "Deadlier than the Male? Women and the Death
Penalty in Colonial Kenya and Nyasaland, c. 1920-57," Stichproben 12 (2007), 13-32; E. Rapaport, "The
Death Penalty and Gender Discrimination," Law & Society Review 25,2 (1991), 367-84.

-51 Kabon w/o Kirop, MLA/1/248; Nyakihinyo w/o Waithenji, MLA/1/350, KNA. See Joanna Lewis,
Empire State Building: War and Welfare in Kenya, 1925-52 (Oxford: James Currey, 2000).

This content downloaded from 186.60.183.85 on Mon, 05 Jun 2017 15:23:17 UTC
All use subject to http://about.jstor.org/terms
90 Stacey Hynd

behind the crime and an acknowledged incomplete understanding of the "African mind."52
A significant number of apparently motiveless murders, particularly cases characterized by
a high level of violence, became associated by colonial courts with "mental instability" or
"insanity" on the part of the perpetrator, with Africans viewed as prone to violent outbursts
when mentally disturbed.53 As legally establishing insanity was difficult due to a lack of
psychiatric facilities and expertise, a suspicion of genuine mental abnormality being raised
during trialeither in a medical report or by the judgewas usually enough for a
condemned convict to be reprieved and sent to Mathari Lunatic Asylum.54

Murders that resulted from attacks on suspected witches presented another


problematic category for colonial courts.55 The killing of suspected witches by individuals
or communities was problematic not only because the killings were "repugnant to justice
or morality," but also because they challenged the monopoly of force on which colonial
rule rested and highlighted officials' doubts about African systems of belief.56 Also, as
Waller suggests, because courts could more easily prosecute witch killings than prove a
case of "witchcraft" against an individual under the Witchcraft Ordinances, from an
African perspective colonial courts often appeared to be protecting witches rather than
African communities 57 As officials feared that executing those who killed witches would
ignite anti-colonial sentiment, and because witch-killings were assumed to be driven by
"superstition" rather than criminal intent, it became an established principle that such cases
would invariably result in mercy, most notably in 1932 when sixty Wakamba men were
sentenced to death by Judge Barth for the killing of an elderly suspected witch, and all
sentences were commuted before appeal after an outcry in both the colony and the
metropole.58 In fact, this pattern was so widely recognized that by the 1940s defense
strategies in over fifty cases included African accused claiming in court that the murders
they committed were actuated by a fear of witchcraft against themselves or their families,

52 See Jock McCulloch, Colonial Psychiatry and the "African" Mind (Cambridge: Cambridge
University Press, 1995).

53 See Sloan Mahone, "Psychiatry in the East African Colonies: A Background to Confinement,"
International Review of Psychiatry 18,4 (2006), 327-32.

^Denge wa Dadi CC144/27, AG/16/256; Okiri s/o Abour CC279/51, MLA/1/430, KNA. While
criminality insanity was legally defined following the English precedent of M'Naghten's Case (1843) 10 C.
and F. 200, there were however significant debates between doctors and judges as to what constituted
"criminal insanity" among Africans; see Memorandum by Dr. H.L. Gordon, Death Sentences: Commutations
and Executions 1936, CO 533/462/9, NRA.

55 See Katherine Luongo, "Domestic Dramas and Occult Acts: Witchcraft and Violence in the Arena of
the Intimate," in Burrill, Roberts and Thornberry, eds., Domestic Violence and the Law, 179-99; G. St. J.
Orde Brown, "Witchcraft and British Colonial Law," Africa 8, 4 (1935), 481-87; Charles Clifton Roberts,
"Witchcraft and Colonial Legislation," Africa 8,4 (1935), 488-94.

56 E.A.C A Judgement, 26 March 1932, Kumwaka wa Mulumbi and 69 Others, AG/52/349, KNA.

57 Richard Waller, "Witchcraft and Colonial Law in Kenya," Past and Present 180 (2003), 244.

58 R v. Kumwaka wa Mulumbi & 69 Others, SC CC175/31 AG/52/349; Witchcraft Murder Case 1912,
PC/COAST/1/17/52; Chepkwoin arap Maiga CC86/39, MLA/1/17; Chege s/o Ndoyo CC10/56,
MLA/1/1341, KNA.

This content downloaded from 186.60.183.85 on Mon, 05 Jun 2017 15:23:17 UTC
All use subject to http://about.jstor.org/terms
Capital Punishment in Colonial Kenya, ca. 1909-1956 91

despite such arguments never being raised during the preliminary investigations in some
cases.59

Finally, at a third level, mercy functioned as an expression of the politics of


colonial rule, shaped by its highly racialized ideological landscapes. According to
Foucault, capital punishment in modern state systems worked through a scientific and
moral demarcation of the "monstrosity of the criminal," a demarcation created primarily
through race.60 Certainly there are numerous examples of racialized and "dehumanizing"
discourses being employed in trial narratives and decisions on mercy in Kenya. The idiom
of "brutality" was the most frequently invoked in calling for execution, linking the
violence of the crimes with a bestial atrocity redolent in contemporary tropes of African
animalistic savagery, as in the case of one Turkana man who was executed for the "savage
and brutal" axe murder of the elderly settler Emanuel Payet near Eldoret in 1946, or the
"notoriously evil ... and brutal" case of a Kikuyu man who beat and burned his wife to
death in Nyeri in 1951.61 "Spear-blooding" murders by groups such as the Samburu,
sometimes involving the murder and mutilation of children or unarmed men for reasons of
prestige, revenge, robbery or the policing of land boundaries, were viewed as particularly
abhorrent and dangerous.62 Processes of deviance amplification in colonial discourses
meant that the execution of such criminals contributed towards the criminalization of
ethnic groups en masse, and the strengthening of polemical links between African custom
and unlawful violence.63 Africans were generally held by the courts to lack the self-control
and discipline of the "civilized European" and be more prone to violent acts, either through
provocation or "irresistible impulse."64
However, colonial penal and judicial discourse reflected a more conflicted view of
the African murderer than a simple Foucauldian narrative would suggest, being strongly
informed by the contradictory nature of colonial governance and its ideological landscapes.
It was common for the crimes of murderers to be viewed as stemming from their "African"
nature rather than from inherent criminality, and they were not perceived as criminal
"types": "the accused is a perfectly ordinary young native with a good character and
anything but a criminal in the usual sense."65 Significantly, the very tropes of "primitive
mentality" used to highlight African violence could also be deployed successfully as
cultural defense strategies by judges and defense counsel alike to argue for mercy: the
contention was that Africans could not to be held accountable to the same standards of

59 Kebeka s/o Okumiri CC216/44, MLA/1/222; Ekali s/o Longoloi CC113/51, MLA/1/416, KNA.

Michel Foucault, Society Must be DefendedLectures at the College de France, 1975-76, ed. M.
Mauro Bertani and Alessandro Fontana, trans. David Macey (London: Allen Lane, 2003), 254-57.

61 Kase s/o Lingetik, MLA/1/259; Karanja s/o Kiratai, MLA/1/411, KNA.

62 Law and Order: Crimes of ViolenceSamburu Murders 1933-6, PC/RVP/6A. 17/44; Mr. T.L.
Powys, AG/52/25. Many thanks to Richard Waller for this information on Samburu cultures of violence.

63 See John McGuire, '"Judicial Violence and the Civilising Process': Race and the Transition from
Public to Private Executions in Colonial Australia," Australian Historical Studies 29,3 (1998), 206.

64 Lokadongoi s/o Ekwie, MLA/1/397; Defence in Murder and Rape Cases, 1927-51, AG/52/1525.

65 Odiero s/o Ogwati CC140/39, MLA/1/13, KNA.

This content downloaded from 186.60.183.85 on Mon, 05 Jun 2017 15:23:17 UTC
All use subject to http://about.jstor.org/terms
92 Stacey Hynd

behavior as Europeans precisely because they were more "primitive."66 Such legal
narratives bargained for mercy for individual Kenyans while reinforcing the discriminatory
hegemonic social relations that underpinned the colonial edifice.67 Interestingly, educated,
Christian or "Europeanized" natives were less likely to be adjudged befitting of the mercy
that their "primitive counterparts" enjoyed. When Justo Odimo, President of an Alego
Native Tribunal in the Kisumu, area killed his cousin Ahono during a quarrel over
brideprice in 1940, Judge Thacker pressed for the death penalty as "the accused was an
influential native ... that the higher the accused's standing in society, the higher is the
standard of behaviour expected from him." Although doubts were expressed over whether
Odimo had intended to kill his cousin, Governor Henry Moore decided to take a firm line
in the case, and only numerous petitions from Alego elders and church ministers saved
Justo from the gallows.68 Such discussions over mercy reveal the tensions in the racialized
paternalism of colonial politics between the desire to create a "civilized," "modern" Kenya,
fears of "detribalization," and knowledge of the weakness of colonial hegemony and its
limited impact on African societies, particularly in rural regions.

Mercy decisions were also explicitly related to the general level of law and order in
a locality, and to a community's perceived standing on the "ladder of civilization." When
one Giriama man was condemned in 1941 for the "cold-blooded ... and brutal murder" of
his stepbrother, it was noted by both the judge and provincial commissioner that "[tjhe
Kilifi district has a bad name for armed assaults, and a high proportion of murder; largely
attributed to drink ... life is held more cheaply in this District than in others."69The Rift
Valley and Northern Frontier District were also areas of particular concern as state
authority there faced frequent opposition and ethnic communities clashed over access to
resources, land, and cattle. The Officer-in-Charge of Northern Frontier District, Gerald
Reece, wrote of one case where a young man was convicted in 1947 for the murder of two
Rendille boys in revenge for his brothers' murders:
though the death sentence is often necessary as a deterrent in these cases of
brutal murder the circumstances in this particular case are exceptional, more
especially in view of the fact that the incident took place in a very remote
and wild part of the province where the people are exceptionally primitive.70

Murders resulting from inter-communal feuds were a serious concern for judicial and
administrative authorities throughout the colonial period, and these cases provoked
considerable discussion when it came to their disposition.71 The issue was how to

66 See Commutation of Death Sentence 1925-40, AG/52/139, KNA.

67 See Tina Loo, "Savage Mercy: Native Culture and the Modification of Capital Punishment in
Nineteenth Century British Columbia," in Strange, ed., Qualities of Mercy, 104-29.

68 Judge Thacker, 1 September 1940, Justo s/o Odhiambo CC120/40, MLA, KNA.

PC Coastal to Colonial Secretary, 27 May 1941 .Wilson Mapea Yaa, MLA/1/94, KNA.

70OIC Reece to Governor Mitchell, 7 August 1947, Ebeiyon s/o Lobok SDC CC5/47, MLA/1/273,
KNA.

71 QIC Reece to Colonial Secretary, 27 December 1943, Dika Hassan and 2 others, MLA/1/172, KNA.

This content downloaded from 186.60.183.85 on Mon, 05 Jun 2017 15:23:17 UTC
All use subject to http://about.jstor.org/terms
Capital Punishment in Colonial Kenya, ca. 1909-1956 93

determine between the mercy that could be granted to "primitive" men little under the
civilizing sway of British administration who acted according to tribal custom, and the
penal severity needed to eradicate such "repugnant," disorderly customs as spear-blooding,
and inter-communal raids. Until 1945 there was a tendency to grant mercy in these cases,
as tribes such as the Boran, Turkana, and Rendille who were usually involved in such
events were regarded as still so primitive that their actions were a result of their
environment rather than determined criminality.72 As in the case of witch killings, the
flexibility in sentencing facilitated by mercy here attempted to fill the chasm between
customary attitudes to murder and colonial homicide law.73

The Performance of Death

In Kenya, as in Britain, the preferred method of state execution was hanging. Hangings
became a central part of the colonial iconography, but the message and meanings they
contained altered over the years 74 The greatest change came in the methods and rituals of
executions themselves, reflecting the evolution of sensibilities and structures of
government in colonies like Kenya. From military firing squads to public executions on
hastily erected gallows or nearby trees in the early period of colonization, metropolitan
pressure urged a move towards private executions within prison precincts on Home Office
approved long-drop gallows with only select officials in attendance once state and
bureaucratic structures had become more established by the 1920s.75 The highly racialized
nature of judicial killings reflected colonial society: Europeans were rarely hanged, and
never in public, as execution procedures were structured around inflicting shame and
degradation on the condemned man, actions that did not mesh well with the maintenance
of white prestige.76 As state-building and bureaucratization expanded in the inter-war
period, "efficiency and humanity" became the watchwords for executions across British
Africa, and the Colonial Office responded vociferously against any public executions or
"botched" hangings brought to its attention.77 In Western historiography, this transition

72 14 Rendille 1928-3, AG/52/257; Kachobe Wanderi CC16/42, MLA/1/145; Gufo Bom, MLA/1/146,
KNA.

73 Robert V. Turrell, White Mercy: The Death Penalty in South Africa 1900-48 (Westport, CT:
Praeger, 2004), 21.

74 Stacey Hynd, "Killing the Condemned: The Practice and Process of Capital Punishment in British
Africa, 1900-50s," Journal of African History 49,3 (2008), 403-18.

75 Read "Kenya, Uganda and Tanganyika," 124. Those officials present at an execution would usually
be the Prison Superintendent, Medical Office, sometimes a District Commissioner and, if requested, a priest.
Criminal CasesProcedure in Death Sentences, 1939-43, MLA/1/1368; Reports of Execution, DC/MRU/
2/17/2, KNA.

76These included Jacobus Grobler, c. 1914, Frederick Ernest Joce and Charles William Ross in 1933,
George James Wray in 1949, and Peter Poole, 1960. See SC CC133/1932 Nakuru, AG 133/32, KNA and
Peter HR Poole 1960-2, CO 822/3009-13, NRA.

77 See Public ExecutionsUganda 1932, CO 536/172/14; Executions in the Colonies: "Strangled for
14 Minutes by Law!" 1930, CO 323/1111/6; Capital Sentences, Irregularities in Carrying Out, Sierra Leone,
1940, CO 267/674/2, NRA.

This content downloaded from 186.60.183.85 on Mon, 05 Jun 2017 15:23:17 UTC
All use subject to http://about.jstor.org/terms
94 Stacey Hynd

from public to "private" executions is often explained as part of a general "civilizing


process," to take an Eliasian view whereby changing social and cultural sensibilities
affected repugnance towards the sight of suffering in self-proclaimed civilized societies.78
Alternatively, Foucauldian perspectives suggest that public punishments were abolished
not because they were inhumane, but because they were inefficient and ineffective.79 In
Kenya, as elsewhere in colonial Africa, both of these views hold some explanatory weight:
the sanitization and immuring of executions behind prison walls was driven by a
combination of universalizing, humanitarian metropolitan pressure, but also by concerns
about the inefficiency of public executions which were frequently botched by untrained
officials. Such concerns reflected colonial attempts to enshrine the "rule of law" after the
brutality and exceptional violence of pacification.

Executions have several meanings, both intended and inferred, for different
audiences, which can either be affirmed or subverted by the actors involved.80 While
executions were to be carried out "in a decent and suitable manner," occasions where the
witnesses watched the condemned being dragged fighting to their death, or where the
officer in charge was visibly reluctant to carry out the execution, subverted the message of
legitimate power they were intended to convey.81 A prison officer reported in the East
African Standard in 1916 of how:

Very few cases occur where the native prisoners walk to the gallows without giving
trouble. In nearly every instance they make a fuss, decline their food, refuse to eat,
and start to cry. Just before the operations they are so nervous that they shriek at the
top of their voices, and struggle for dear life when the Superintendent reads out the
order.82

Such acts of identity assertion and degradation avoidance by the condemned


prisoner at the scaffold, and the potential reception of these within a society, created a
crisis of ritual semiosis for the state, pressuring it towards reforms if state execution was to
remain palatable to shifting metropolitan sensibilities.83 The immuring of executions
within prisons suggests a change in the meaning and dramaturgical criteria of capital
punishment: the "theatre of death" became increasingly directed towards the colonial
administration and European settlers as much, if not more, than the African population,
comprising a discourse of contested colonial authority.

Following a Colonial Office circular requesting the abandonment of public


executions in British colonies, Nairobi had announced in early 1909 that all executions

78 Norbert Elias, The Civilising Process: The History of Manners and State Formation and
Transformation, trans. Edmund Jephcott (Oxford: Blackwell, 1994).

79 Michel Foucault, Surveiller et punir: Naissance de la prison (Paris: Gallimard, 1975).

80 Philip Smith, "Executing Executions: Aesthetics, Identity and Problematic Narratives of Capital
Punishment," Theory and Society 25,2 (1996), 254-56.

81 Judge Hamilton, Mombasa, 29 May 1909, AP/1/526, KNA.

82 "A Prison Warder's Diary," East African Standard, 23 June 1916,16.

83 Smith, "Executing Executions," 236.

This content downloaded from 186.60.183.85 on Mon, 05 Jun 2017 15:23:17 UTC
All use subject to http://about.jstor.org/terms
Capital Punishment in Colonial Kenya, ca. 1909-1956 95

were to take place within prison precincts and follow British precedent.84 The transition
from public to private execution however was neither an uncontested nor constant process.
Scaffold crowds generally served unique functions that were not easily disavowed: they
assembled to learn moral lessons, to affirm the law's sovereign power, and to bear witness
to the law's open process.85 In Kenya however, execution was more about the visible
power of a colonial state, than the "majesty of the law," which was alien to many Africans;
it was not "their" law that crowds witnessed, and the signification of the gallows lacked
resonance in local cultures. Despite this, both settlers and officials believed strongly in the
efficacy of public hangings and felt their abolition created a vacuum of power in colonial
authority. Colonial officials were quick to argue with London that the difference in
material and political situations between Britain and Africa rendered efforts towards penal
reform unworkable.86 In direct opposition to the Colonial Office's request for executions
behind prison walls, in September 1909 four African men were executed "at the scene of
the crime" in the Rift Valley for the murder of a settler farmer, Mr. London.87

Calls for the use of public execution persisted until the 1940s. As Shadle argues in
this volume, settlers frequently mobilized public violence as a means to assert their power.
The settler community certainly tried to interpret the Colonial Office's rejection of public
execution as being "save under exceptional circumstances"; those circumstances being
when an African fatally attacked a member of their community. The trial of three Lumbwa
men accused of murdering their employer, the elderly farmer Mr. E.B. Drought, at
Londiani on 31 August 1917, saw settlers make voluble calls for trials and executions at
the scene of the crime. While he acknowledged that the Protectorate Administration could
not sanction a full public execution, the acting governor told Secretary of State for the
Colonies Walter Long, that: "some evidence and that of the clearest kind, that is ocular
evidence, is occasionally desirable."88 Long ordered that selected observers from the
condemned men's community witness the execution to "to secur[e] the widest publicity to
the fact that the punishment had in reality been inflicted." Although London was wary
about such "semi-private executions," it was decided to allow colonial governments to use
this expedient to prevent "the possibility of lynch law, which would be deplorable not so
much because of the necessity for hanging lynchers as because of the provocation to race
hostility which it would give to the natives."89 Calls from settler communities for public
executions were repeated after the murders of the fanners Ernest Kenyon in 1929, and

84 Capital Sentences: Executions not to be carried out publicly 1909, AP/1/526, KNA.

85 V.A.C. Gattrell, The Hanging Tree: Execution and the English People, 1770-1868 (Oxford: Oxford
University Press, 1994), 601.

86 Judge Hamilton to Colonial Secretary, 29 May 1909, AP/1/526, KNA.

87 Ibid., Despatch 445 to Sir Hayes Sadler, 3 September 1909. It did however also note that it was
unclear from the Nairobi despatch whether the execution had taken place in fully public view.

88 East Africa Protectorate, 1918 Despatches, 21 March 1918, CO 533/193, NRA; Londiani Murder
Case, AG/52/250, KNA.

89 Note by W Bottomley, 21 March 1918, CO 533/193, NRA.

This content downloaded from 186.60.183.85 on Mon, 05 Jun 2017 15:23:17 UTC
All use subject to http://about.jstor.org/terms
96 Stacey Hynd

Alex Semini in 1934.90 Colonial governments did not only have to translate metropolitan
discourses of violence into local dialects; they also had to mediate local discourses, both
African and settler.91

It was in response to inter-ethnic, rather than inter-racial, conflicts however that


colonial administrators themselves most frequently requested public hangings, and in
frontier districts were where calls such executions persisted the longest. In June 1922, two
convicted Samburu men, Gerrick and Liagi were executed by firing squad in Barsaloi for
an "inter-tribal affray" murder, after the acting governor was advised by the acting chief
justice and provincial administration that public execution "was considered desirable as a
deterrent" but it was "impossible" to transport gallows to the locale.92 According to the
diary of Martin Mahony, the officer who conducted the firing squad:

At 5.30 a.m. marched prisoners, guards and firing party out to range. Found all the
Samburu chiefs and some Turkana already assembled there. Briefly read them the
Governor's confirmation of the death sentences. Blindfolded the prisoners and
carried on. The whole affair did not last more than 15 minutes. Damn glad to get it
over. I think the effect will be the desired one. Proceedings were very solemn, not a
sound the whole time and everything went like clockwork 93
Local African communities-or at least their Headmen and Elders-could also
apparently be vociferous supporters of public executions. The boundary between Kenya
and Abyssinia witnessed a long running feud between Ajuran and Boran communities,
during which forty-eight people were murdered between 1924-31, often at wells where the
different groups gathered and competed for scarce water supplies. According to Provincial
Commissioner Glenday:
I am convinced that where a conviction can be obtained, there is only one course to
be taken with the murderers, and that is a public execution at the nearest wells to
where the murders took place. I discussed this matter with the Fitaurari, and with
the various headmen and elders of the warring tribes, and they all urged this
method.94

90 Murder of Ernest Kenyon, CO 533/390/10, NRA; SC CC96/29 R v. Mugo s/o Kaligwa and Ngari
WeruMurder of Mr. Kenyon near Thomson's Falls by 2 Kikuyus, 1929-30, AG/52/340, KNA; Executions
in Public in the Colonies, extract from The Times, 4 July 1934, CO 323/1283/2; Criminal Cases 1936-7, R v.
Kibet arap Boregi and 6 Others CC123/34, CO 533/481/1, NRA.

91 See David M. Anderson, "Black Mischief: Crime, Protest and Resistance in Colonial Kenya," The
Historical Journal 36, 4 (1993), 851-77; Dane Kennedy, Islands of White: Settler Society and Culture in
Kenya and Southern Rhodesia, 1890-1939 (Durham, N.C.: Duke University Press, 1987).

92 The Secretary of State for the Colonies subsequently ordered that firing squads were not to be used
under any circumstances. Kenya 1923 Despatches, CO 533/295, NRA.

93 Martin Mahony, Barsaloi Diaries, 21 June 1922, MSS.Afr.s.487, RHL.

94 PC V. Glenday, 12 October 1931, Disarmament of Frontier Tribes and Abyssinian Raids, Kenya, CO
533/421/4, NRA.

This content downloaded from 186.60.183.85 on Mon, 05 Jun 2017 15:23:17 UTC
All use subject to http://about.jstor.org/terms
Capital Punishment in Colonial Kenya, ca. 1909-1956 97

The Colonial Office, however, rejected such proposals.95 During the colonial
period many African communities came to express support for hanging murderers they
regarded as having committed unpardonable crimes, usually those threatening established
social hierarchies: Judge Belcher, commenting on a case of one Samburu man who killed
an elder in front of five witnesses, noted "that his co-villagers are only too anxious to get
rid of him as a nuisance seems plain."96 Other communities like the Kikuyu however were
apparently "much averse to giving information in murder cases on account of capital
punishment," at least in the early colonial period.97

Caught between metropolitan pressure to modernize and reform executions, settler


demands for visible, retributive punishment and official fears that Africans believed
condemned men were "being sent to England or otherwise disposed of' if communities did
not witness hangings first hand, the Kenyan government introduced a system whereby two
witnesses from a condemned man's community were brought to view him before and after
execution, to transmit the message of the state's power back to their locality.98 The
imputation was that colonial officials felt justice must be "seen" to be done, even if the full
force of state violence itself was to be hidden. This recommendation, in effect, for a semi
private system of execution shows that while changing sensibilities regarding acceptable
violence and the treatment of Africans were encouraging more ostensibly "humane"
punishments, the perceived need for effective deterrence and firm discipline necessitated
retaining the symbolic violence of the execution, if in a moderated form.99

The emergence of colonial welfarism, particularly in the post-1945 period drove


the (admittedly limited) reform of many parts of the Kenyan criminal justice system.100 In
terms of the death penalty however, the political context was not ripe for reform. It was a
desire to maintain the didactic function of execution which led Kenya, alongside all other
British African territories, to reject metropolitan calls to bring their judicial systems into
line with Britain when it moved towards the abolition of the death penalty between 1947
and 1956, with governors stating they intended to retain capital punishment as "there has
been an increase in violence in a number of Colonial territories" and that abolition would
be taken as a sign of weakness by anti-colonial movements.101 Nowhere was this linkage

95 P. Cunliffe-Lister to H. Moore, 9 June 1932, CO 533/421/4, NRA.

96 Lolingingidir arap Serbeno CC127/39, MLA/1/15; Pkemoi s/o Karengan and 3 others CC149/55,
MLA/1/1326, KNA.

97 Note by DC, 3 April 1915, Political Record Book Kiambu, PC/CP/1 /4/3, KNA.

98 Bushe Commission, s. 186-7, 66; Execution of Murderers, 1925, DC/LDW/2/21/18, KNA;


Alexander Paterson, Report on a Visit to the Prisons of Kenya, Uganda, Tanganyika, Zanzibar, Aden and
Somalia (Morija: Morija Print Works, 1944), 28.

99 McGuire, '"Judicial Violence,'" 209.

Branch, "Escaping the Colonial Archipelago"; Chloe Campbell, "Juvenile Delinquency in Colonial
Kenya, 1900-1939," The Historical Journal 45,1 (2002), 129-51.

101 Memo by K. Blaxter, 21 April 1948, Capital Punishment; UK Criminal Justice Bill, CO 859/164/4,
NRA. See also Capital Punishment, 1957-9, CO 859/985-90, NRA.

This content downloaded from 186.60.183.85 on Mon, 05 Jun 2017 15:23:17 UTC
All use subject to http://about.jstor.org/terms
98 Stacey Hynd

between capital punishment and the suppression of anti-colonialism more evident than
during the Mau Mau rebellion.

Historicizing the Mau Mau Hanged, 1952-57


During the Mau Mau State of Emergency some 1,574 Kikuyu were convicted of capital
offenses, with 1,090 people sent to the gallows, and this at the very time Britain was
debating the abolition of the death penalty in the metropole.102 If the reform of capital
punishment during the previous decades, with the removal of execution into a carefully
controlled private arena and the calculated use of mercy, can be explained at part of a
process of "civilization," then the Mau Mau executions seem equally representative of a
spurt of what Elias termed "de-civilization": not an aberration but an "intensive extension
of the principles of colonial government."103

As Berman has argued, it was the "incumbent violence" of the Kenyan colonial
state that routinely employed corporal punishment, imprisonment, pass systems and land
dispossessions that facilitated its response to Mau Mau.104 The State of Emergency
executions similarly emerged from the existing principles and performance of the death
penalty, but became both normative and exceptional to these precedents: when its
hegemony and order was threatened, the colonial regime responded by the use of extreme
force, which was an extension of the routinized violence that shaped its normal governance
strategies.

As in the earlier colonial period, settler and official calls to criminalize Mau Mau
activity as a capital offense aimed to restore colonial control; a reassertion of the ritual
legitimacy of the colonial state and its "sovereign right to kill and let live," a right which
the Kenyan state proved all too effective in enforcing.105 Executions here formed part of a
discourse of social defense, designed to buttress civilization against those beyond its
confines. Under State of Emergency regulations, offenses ranging from the possession of
ammunition and explosives to administering the feared Mau Mau oaths or simply
consorting with known Mau Mau adherents and "furthering terrorism" became capital
offenses, although London refused to allow a return to public executions. A system of
Emergency Assize courts was established, which granted capital sentencing powers to
district magistrates, and laws of evidence and procedure were relaxed, with some senior
judges leaving their positions in protest.106 "Due process" and the "rule of law" may have
been dead on their feet, but the performative facade of British "justice" remained an

102 Anderson, Histories of the Hanged, 6-7.

103 Elias, Civilizing Process-, Joanne Lewis, Empire State Building: War and Welfare in Kenya, 1925
52 (Oxford: James Currey, 2005), 6.

104 Bruce Berman, "Bureaucracy and Incumbent Violence: Colonial Administration and the Origins of
the Mau Mau Emergency in Kenya," British Journal of Political Science 6,2 (1976), 143-75.

105 Michel Foucault, "Faire vivre et laisser mourir: La naissance du racism," Les Temps modernes
(February 1991), 57.

106 Anderson, Histories of the Hanged, 7, 62, 70-72, 154; Setting up of Special Courts, CO 822/734;
Proposals to Deal with Disturbances Arising from the Activities of Mau Mau Secret Society Kenya, CO
822/437-41; Minutes, CO 822/702, NRA.

This content downloaded from 186.60.183.85 on Mon, 05 Jun 2017 15:23:17 UTC
All use subject to http://about.jstor.org/terms
Capital Punishment in Colonial Kenya, ca. 1909-1956 99

important symbolic legitimator of the Kenyan government's response to the Emergency.


Settler communities drew on the memory of previous campaigns for the hanging of
Africans who attacked European farms to demand the re-introduction of public executions
for convicted Mau Mau fighters, preferably immediately following trial and without right
to appeal, so that Africans could witness "British justice in action." But there was a tension
between calls for public executions as displays of British power and justice, and the need
to avoid creating martyrs from Mau Mau fighters or arousing international approbation
through mass executions, which ultimately saw Nairobi and London resist such calls.107

On one level the Mau Mau executions can be read as an emotive response of a
political order under threat; a punishment geared at reassuring the settlers and the colonial
state itself that order was not lost, expanding the normative operation of the death penalty
in a frantic attempt to restore social boundaries and racial hierarchies against the
"monstrous" threat posed by Mau Mau.108 At another level however, understood within the
wider nexus of colonial responses to Mau Mau and the history of the death penalty in
Kenya discussed above, it can be argued that the normal role of executions had become
became inverted. Rather than simply serving as a general deterrent to maintain "law and
order," the symbolic violence of hanging became recast for internal consumption as a
punishment against individuals to exact revenge for their crimes: the function of societal
"deterrence" was filled by less "sanitized" methods of violence, such as detention camps,
public beatings and extra-judicial killings.109 Anderson comments on the anonymity of the
Mau Mau hanged; while the execution of Dedan Kimathi and other high-profile Mau Mau
adherents had a figurative import, most executions were quietly carried out in the darkness
of Kenya's prisons, following routine procedures. However, each execution symbolized in
itself a targeted act of retribution against a specific offender, inscribing colonial power
upon the offending subject. With the decision to maintain executions hidden behind prison
walls, public and media attention was instead primarily focused on capital trials
themselves. But as officials still felt Africans needed to "see justice done," executions
continued to be selectively publicized: for the 1953 Lari massacre trials, the gallows could
be ominously viewed from the courthouses, and notices of execution were published across
Kenya.110 Against this, from a metropolitan-facing perspective, the judicial legitimacy and
routinized ritual of state executions served as a faade which attempted to deflect attention
away from the brutality of counter-insurgency, and maintain the legalistic foundations of
colonial governance.
Unsurprisingly, the State of Emergency initially had an adverse impact on capital
cases elsewhere in Kenya as the landscape of colonial power darkened. From 49 percent of
murder cases being commuted in 1950, only 17 percent of cases that were not linked to the
Emergency were granted mercy in 1952. One of the few cases where men were executed

107 Minutes, CO 822/702, NRA; Anderson, Histories of the Hanged, 154.

108 See Foucault, Society Must be Defended, 254-57.

109 For newly discovered archives shedding light on this violence, see the special edition of the Journal
of Imperial and Commonwealth History 39,5 (2011), articles by David M. Anderson, Huw Bennett, Caroline
Elkins, and Stephen Howe.

110 Anderson, Histories of the Hanged, 155,174,342.

This content downloaded from 186.60.183.85 on Mon, 05 Jun 2017 15:23:17 UTC
All use subject to http://about.jstor.org/terms
100 Stacey Hvnd

for the murder of a suspected witch doctor occurred in Nyangusu, Kisii in 1956. Four men
were convicted of the murder, of which DC Wolff of South Nyanza had "no doubt
whatsoever that local public opinion was in favour of the death of the witchdoctor ... the
method of the killing however was most brutal and alienated the sympathies of all the local
people, who likened the slaughter to the bestial killings of women and children by Mau
Mau."111 Other, judges and district commissioners however argued that "in comparison
with the beastly crimes prevalent elsewhere," murder seemed a less significant offense
than previously.112 Drawing on the extant archival evidence, some 247 people were
sentenced to death during the Emergency for non-Mau Mau related homicides, of whom
106 had their sentences commuted: in comparison, only twenty-seven of the 346 persons
convicted of Mau-Mau related murders were reprieved.113 By 1954, when confidence grew
that Mau Mau would be defeated, and increasing numbers of people convicted under the
State of Emergency regulations were having their death sentences commuted, it became
difficult to insist upon execution in cases of ordinary murder that were ostensibly regarded
as much less threatening and reprehensible to the colonial government: as the district
commissioner of Voi wrote of one Teita man convicted of murdering his uncle "at a-time
when so many are given amnesty, I do not think it right that [he] should hang."114

Conclusion

Ultimately the contests over the use of the death penalty in Kenya emerged out of the
nexus of colonial power and its straining filaments of authority, with capital punishment
illuminating the limits of both colonial violence, and of the modernizing, welfarist reforms
within colonial state. In the inter-war years the rationalization of capital punishment,
through the reform of its procedures and the use of mercy, served to reinforce the boundary
between the government and competing African, settler and metropolitan audiences,
conferring legitimacy on state executions that could otherwise look all too similar to the
brutal murders there were intended to punish.115 Refined sensibilities had to co-exist, if
uneasily, with rationales for continued physical punishment.116 Violence may have been
fundamental to colonial control in Kenya, but to establish and retain some form of
legitimacy it was necessary for that force to be tempered with mercy. Mercy served to
racialize British justice and mold it to better fit the often contradictory landscapes of
colonial power, as representations of African "primitive mentalities" and "superstition"
were deployed in trial narratives to alternatively convict and then spare murderers the

111 It was determined that the four men beat the deceased, then held him down and sawed off his head
with a knife. Nyandieka s/o Nyandieka and 3 Others CC185/55, MLA/1/1340, KNA.

112 DC Kericho to Colonial Secretary, 3 March 1953, Kibor arap Sang, MLA/1/459.

113 These were mainly women, youths, and those convicted towards the end of the Emergency.

114 KNA, MLA/1/1199 (Malalo s/o Kidochimo CC24/54).

115 Timothy Kaufman-Osborne, "On the Rationalization of State Violence: English Liberalism and the
Noose," in Austin Sarat and Patricia Ewick, eds., Studies in Law, Politics and Society 22 (London: Elsevier,
2001), 3-4.

116 Carolyn Strange, "The Undercurrents of Penal Culture: Punishment and the Body in Mid-Twentieth
Century Canada," Law and History Review 19,2 (2001), 366-84.

This content downloaded from 186.60.183.85 on Mon, 05 Jun 2017 15:23:17 UTC
All use subject to http://about.jstor.org/terms
Capital Punishment in Colonial Kenya, ca. 1909-1956 101

death sentence. The primary function of capital punishment in Kenya was didactic rather
than retributive, and it was this didactic intention which allowed a relatively high level of
mercy to operate: at least until colonial authority was threatened on a large-scale, and the
symbolism and import of executions was recast during the State of Emergency. The
relationship between the Mau Mau hangings and colonial violence was relationship of both
the exception and the rule, the anomaly which establishes the norm: an occurrence of
colonial brutality which emerged from the routinized force of colonial structures, laws and
punishments, but which, in surpassing and suspending the rule of law, mercy and justice,
sought to re-establish them.117 The executions of 1,070 Kikuyus served multiple purposes
for various audiences, being intended to instill terror in Mau Mau supporters, to establish
the punishment of individuals for offenses against the colonial order, but also as a legalistic
facade to rationalize and validate the colonial government's response to the crisis.
Ultimately, the "revenge and retribution," which the Bushe Commission in 1934 had
ordered "must go ... if the peoples of these territories are to advance in enlightenment and
prosperity," had re-emerged as the primary rationale for judicial killings.118

The final word on this aspect of the violence of colonialism in Kenya however
should lie with those men and women who faced the death penalty for their crimes. As
Mau Mau raged on, on the 6 November 1953, Muturi s/o Munuyuru stood before Chief
Justice Hearne in Nairobi, awaiting sentence for the murder of another Kikuyu man during
a quarrel. As he was convicted and sentenced to death, Muturi addressed the court,
pleading to Hearne as he recorded the sentence: "the pen you are using could kill someone;
therefore you should not use it."119 For all the discourses of "justice," "law" and
"civilization," and for all the rationalizations of state violence as deterrence or retribution,
whether guilty or innocent the victims of Kenya's imperial gallows were, at the last,
sacrifices to colonial order and the maintenance of its rule.

117 See Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life (Stanford: Stanford University
Press, 1998), 16-26.

118 Bushe Commission, s. 162,57.

119 Muturi s/o Munuyuru CC237/53, MLA/1/593, KNA. In this case, Muturi's plea for mercy was
successful and his death sentence was commuted to fourteen years' imprisonment.

This content downloaded from 186.60.183.85 on Mon, 05 Jun 2017 15:23:17 UTC
All use subject to http://about.jstor.org/terms