The High Court has declared life imprisonment unconstitutional terming it as an unreasonable and absurd sentence.
According to Justice Nixon Sifuna, handing an offender a life sentence violates the right to human dignity guaranteed under Article 28 of the Constitution.
The judge said in imposing a term of life imprisonment, the court needs to state it in days, months, or years and with a known date of commencement.
“From the foregoing reasons, I find that the life sentence is not only archaic in the present civilisation, but also unreasonable and absurd,” the judge said.
In Kenya, it is assumed that a prisoner should serve their time in prison until they die when they are slapped with life imprisonment.
Justice Sifuna decided in a case involving JN, who was found guilty and sentenced to life imprisonment for incest.
The beastly father was convicted and sentenced for molesting his 10-year-old daughter, an offence he committed on May 18, 2017, at the Wemba location in Murang’a County.
Kigumo senior resident magistrate S. Agande sentenced him on July 21, 2022, but he was not satisfied and challenged both the conviction and sentence.
In the appeal, Justice Sifuna said the prosecution proved four essentials required in such cases, including that the incident occurred, the identity of the perpetrator, the blood relationship, and the age of the victim.
“From the evidence on record of the trial court which was forwarded to this court, I am satisfied that all the ingredients of the offence of incest were proved,” the judge said adding that the case was proved to the required standard of beyond reasonable doubt.
However, the judge said a life sentence is akin to a death sentence for while the date of commencement is known or determinable, the date of completion is unknown right from the moment of sentencing.
Justice Sifuna added that in the actual sense, life imprisonment is indeterminable, indefinite, mathematically incalculable, and therefore, quantifiable only for the convict’s entire remainder of his lifetime.
“It is a deceptive sentence, in that once commences it thinking that he will one day complete it and be released from prison,” said the judge.
The judge set aside the life sentence imposed on JN and substituted it with 10 years in prison starting from July 21, 2022, when he was sentenced.
In 2018, then-Attorney General Githu Muigai appointed a 13-member task force after the Supreme Court directed him and Parliament to commence an inquiry and develop legislation on the definition of what constitutes a life sentence.
The Judges led by Chief Justice (retired) David Maraga said this may include a minimum number of years to be served before a prisoner is considered for parole or remission, or provision for prisoners under specific circumstances to serve whole life sentences.
After collecting views from various stakeholders, the task force proposed for life imprisonment to be retained in the laws, and tampered with parole.
“To this end, the State is therefore in the process of developing a Correctional Services Policy which has policy guidelines on issues touching on Parole, Probation, and Aftercare,” the Taskforce report said.
