Prisoners challenge indefinite life sentence in a landmark court case

Twenty-four prisoners have moved to the High Court to challenge life imprisonment amid contradicting rulings on the matter.

The group argues that life imprisonment is akin to a mandatory sentence, since a convict is expected to leave jail only if the President pardons him, or in a casket.

The 24 sued the Director of Public Prosecutions and the Attorney General, arguing it violates human dignity and the Constitution. They insisted that their case was not about their past, but a public interest battle on whether courts should continue handing life sentences as set by Parliament.

According to them, judges and magistrates ought to consider the circumstances of each case, the age of the offender, and if one can be rehabilitated to decide one qualifies for parole or not.

According to the case filed on Tuesday, judges and magistrates ought to consider the circumstances of each case, the age of the offender and if one can be rehabilitated to decide one qualifies for parole or not.

“The instant petition has nothing to do with the petitioner's conviction as we humbly approach this constitutional court to invoke provisions of Article 22, 23, and 165 of the Constitution for the determination as to whether the indefinite nature fi the life sentence is in line with the letter and the spirit of the Constitution of Kenya 2010,” argues Stephen Njau, who swore an affidavit on behalf of the other 23 convicts.

Njau was sentenced to death for robbery with violence, but the sentence was commuted to life on appeal.

Kenya no longer hangs those who are convicted of murder, robbery with violence and treason. Instead, their sentences are commuted to life.

The Court of Appeal had ruled that life imprisonment in Kenya should be 30 years in jail at most. However, different courts are still handing sentences beyond 30 years.

On the other hand, the Sexual Offences Act provides that a person convicted of defiling a minor aged between 12 and 15 should be jailed for more than 20 years; those nabbed for having sex with minors aged between 16 and 18 should get 15 years minimum, while those who defile children aged below 11 get a mandatory life sentence.

The second highest court in the land initially ruled against holding convicts until they die in prisons. Justices Pauline Nyamweya, Jessie Lesiit and George Odunga were first to unanimously agree that it is unfair to outlaw mandatory death sentences, only to order a person to remain behind bars until they die.

The court has for the second time, waded into the legality of life sentences in Kenya and ruled that the maximum a person can serve as life sentence should be 30 years.

The judgment by Justices Hannah Okwengu, Hellen Omondi and Prof Joel Ngugi were unanimous last week that life imprisonment is cruel and degrading treatment owing to the uncertainty that one will leave prison while alive.

 “On our part, considering this comparative jurisprudence and the prevailing socio-economic conditions in Kenya, we come to the considered conclusion that life imprisonment in Kenya does not mean the natural life of the convict. Instead, we now hold that life imprisonment translates to thirty years’ imprisonment,” the Bench ruled.

The judges were determining an appeal filed by Evans Nyamari, who was jailed for defiling a six-year-old child. They observed that there in concurrence in Africa and Europe that a prisoner deserves a second chance.

They singled out Zimbabwe and South Africa. In Zimbabwe, a prisoner is entitled to parole after a lapse of 25 years.

In South Africa, however the courts declined to outlaw sections of law providing life imprisonment as a punishment. Instead, the judges ruled that life sentences should have a parole.  South African Supreme Court of Appeal, was unanimous that a prisoner should be considered for parole after serving 20 years of the sentence. If a prisoner is 65 years or more, he or she is entitled to parole after serving at least 15 years.

 In Europe, Germany Federal Constitutional Court found that life imprisonment is not in itself unconstitutional.  However, it ruled that keeping a person behind without a realistic chance of ever regaining their freedom is against human dignity.

The German court set 15 years’ service as the minimum for a prisoner serving life imprisonment to qualify for parole.

In Asia, countries such as Malysia, Pakistan have repealed their laws to cap life imprisonment to max 40 years and 25 years, respectively.

 “This emerging consensus of the civilized world community, while not controlling our outcome, provides respected and significant confirmation for our own conclusion that life imprisonment is cruel and degrading treatment owing to its indefiniteness,” the Court of Appeal judges observed.

They ruled that Nyamari should serve 30 years owing to the severity of what he on July 10, 2011.

An analysis of convicted persons between 2019 and 2021 indicates that Kenya had 511 convicts, among them four women, handed a life sentence in 2019.  In 2020, there were at least 128 men and two women imprisoned for life while in 2021, some 268 men and five women were jailed for life.

Meanwhile, Nyamweya, Lesiit and Odunga in a separate judgment found the purpose of jailing a person is to either deter, rehabilitate, denounce and retribution.  However, they asserted that life sentence should not mean the natural life of a prisoner.

The judges were determining an appeal filed by Julius Kistao against the State.  Kitsao was charged with defiling a four-year-old minor.

The three Appeal Court judges observed that in his mitigation, he did not plead that he was young at the time.  Further, they were of the view that his actions to the minor were likely to affect her life. They directed that he should instead serve 40 years for deterrence and rehabilitation.

 According to them, although the Supreme Court found the  death sentence to be legal and the same has remained legal to date, it serves no purpose, as the last person to be handed death was a senior private in the Kenya Air Force, Hezekiah Ochuka, who was hanged on July 9, 1987, at the age of 33 after being found guilty of the failed 1982 coup.

 According to Justice Nyamweya, Lesiit and Odunga, those on death row have, for the last 38 years, been getting life sentences after successive presidents' committal.

"While death sentence is retained in statute books, in reality and for all practical purposes it no longer exists. However, it is not for us to delete it from the statute books. What is, however, clear is that in terms of execution there is no distinction between death sentence and life sentence,’ they observed in a judgement against murder convict David Kiteme.

 On June 9, 2023, his life sentence was cut to  25 years. And since he was in jail all through the trial, they ordered that his sentence should run from May 27, 2014, meaning he has at least 2 and half years remaining.