UNCONSTITUTIONALITY OF LIFE IMPRISONMENT: AN APPLAUSE TO THE KENYAN JUDICIARY FOR THE TRANSFORMATIVE INTERPRETATION

 

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The goal of sentencing in the judicial system is multifaceted, aiming at retribution, deterrence, rehabilitation, restorative justice, community protection, and denunciation.[1] These goals, however, can sometimes be in conflict, raising critical questions about how they are achieved through judicial decisions. This blog reviews how the Kenyan Judiciary has addressed these issues, particularly focusing on the transformative jurisprudence regarding the unconstitutionality of life imprisonment. Globally, the International Covenant on Civil and Political Rights (ICCPR) asserts that the primary objectives of imprisonment should be the reformation and social rehabilitation of the criminal.[2] This sets a foundational principle that punishment should offer a pathway to rehabilitation and potential reintegration into society.

In Kenya, various offenses mandate a life sentence. The Sexual Offences Act, for example, dictates life imprisonment for anyone convicted of defiling a child aged eleven years or younger.[3] Other crimes leading to life sentences include concealment of treason,[4] treason (specifically for non-citizens),[5] treachery,[6] attempted murder,[7] grievous harm,[8] aiding suicide,[9] and intentional killing of an unborn child[10] among others.

The Kenyan Court of Appeal’s ruling in Julius Kitsao Manyeso vs. Republic[11] cited the landmark Francis Karioko Muruatetu v Republic case,[12] which played a pivotal role in re-evaluating life imprisonment. It was argued that mandatory life sentences prevent a convict from presenting mitigating circumstances, an opportunity afforded to those facing lesser sentences. This was deemed discriminatory and a violation of equality and human dignity under Articles 27 and 28 of the Constitution, respectively.[13] The court emphasised on the human nature of the sentence.   Building on this foundation, the court in Mwingirwa v Director of Public Prosecutions replaced a life sentence with 20 years of imprisonment, emphasizing the need for rehabilitative opportunities and the possibility of release.[14] Such decisions underscore a shift towards respecting human rights and the dignity of the incarcerated.

Justice Sifuna, in Justus Ndungú Ndungú v Republic,[15] highlighted the resemblance of life sentences to death sentences, noting that both lead to a permanent severance from society without hope of reinstatement. He pointed out the non-mathematical nature of life sentences which become indefinite and potentially inhumane over time.[16] In another significant judgment, Simon Irungu Nyambura v Republic,[17] the court addressed the maximum nature of life sentences. It emphasized that life imprisonment should not be mandatory or devoid of judicial discretion, arguing that such sentences should be open to lesser alternatives depending on the case specifics. The discussion also extends to international jurisprudence. The European Court of Human Rights in Vinter and others v The United Kingdom established that indefinite life sentences without the possibility of release constitute cruel and inhumane punishment.[18] The court advocated for regular reassessment of the justification for continued detention, recognizing the dynamic nature of penal rationales over time. In R v Bieber,[19] a case from the United Kingdom, it was reasoned that the aims of imprisonment need to be balanced and reassessed throughout the duration of a life sentence. The unbounded nature of traditional life sentences is not only seen as unreasonable but also as absurd and in violation of constitutional rights.

Therefore, to remedy these issues, the Kenyan judiciary has recommended legislative amendments to cap life sentences at a maximum of 30 years, offering convicts a defined period of incarceration and the hope of eventual release.[20] This recommendation was further enforced in a landmark judgment where the Court of Appeal limited the life sentence to 30 years, clarifying that this should be communicated clearly to the accused during sentencing.[21] Such reforms aim to address the judiciary’s call for legislative action to resolve the ongoing conflicts in interpreting what constitutes life imprisonment. A good example to consider is the case of Jackson Maina Wangui & Another v. Republic[22] where the High Court stated that it is not the role of the judiciary to determine what amounts to life imprisonment but it is the role of the legislative branch of government.

In summary, the Kenyan judiciary has played a crucial role in transforming the interpretation of life imprisonment, aligning it with principles of fairness, dignity, and human rights. It has set a precedent that challenges outdated punitive measures and promotes a more rehabilitative approach to sentencing. The recognition of the unconstitutionality of life imprisonment by Kenyan courts represents a significant step towards justice reform, emphasizing the need for legislative changes to permanently resolve these judicial dilemmas.

 

By Youngreen Peter Mudeyi

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[1] Judiciary of Kenya Sentencing Policy Guidelines (2016) page 15, para 4.1.

[2] ICCPR (1966) Article 10(3). Note that the Constitution of Kenya 2010 at Article 2(6) provides that any treaty or convention that is ratified by Kenya shall form part of the laws of Kenya. Kenya ratified the ICCPR in 1972 and thus the courts are bound by its provisions.

[3] Sexual Offences Act, Laws of Kenya, CAP 63A, section 8(2).

[4] Penal Code, Laws of Kenya CAP 63, section 42.

[5] Ibid, Section 43.

[6] Ibid, Section 43A.

[7] Ibid, Section 220.

[8] Ibid, Section 234.

[9] Ibid, Section 225.

[10] Ibid, Section 228.

[11] Julius Kitsao Manyeso v Republic, Criminal Application No. 12 of 2021, being a judgement dated 7^th July 2023.

[12] Francis Karioko Muruatetu v Republic (2017) eKLR.

[13] Julius Kitsao (n 12 above).

[14] Mwingirwa v Director of Public Prosecution (Petition E082 of 2023) [2023] KEHC 23665 (KLR) (12 October 2023) (Judgment) para 1 and 2.

[15] Justus Ndungú Ndungú v Rebublic, Criminal Appeal No. E 052 of 2022, para 16.

[16] Ibid.

[17] Simon Irungú Nyambura v Republic, Criminal Appeal No. 17 of 2019, para 15, 16, 19 and 22.

[18] Vinter and others v The United Kingdom (Application Nos 66069/09, 130/10 and 3896/10) [2016] III ECHR 317 (9 July 2013)

[19] R v Bieber [2009] 1 WLR 223.

[20] Evans Nyamari Ayako v Republic, Criminal Appeal No. 22 of 2018.

[21] Simon Irungú Nyambura v Republic (n 17) para 25.

[22] Jackson Maina Wangui & Another v. Republic Criminal No. 35 of 2012; [2014] eKLR, para 72 & 76.