IS THE LIFE IN PRISON SENTENCE REALLY UNCONSTITUTIONAL IN KENYA?

 

Recently,a major decision by the high court on the constitutionality of life sentences has brought the particular matter into widespread debate among legal circles and the general public as the honourable justice ruled that life sentences are unconstitutional.However, unbeknownst to the general public,that is actually not a major precedent in the matter as just as recently as last year,the court of appeal in a bench consisting of Justices Pauline Nyamweya, Jessie Lesiit and George Odunga also ruled that life sentences were unconstitutional.This two cases have brought great debate and confusion from the public and legal practitioners and l therefore aim to dissect and compare the two cases,the major principles and precedents that can be derived from both cases and then give my unequivocal opinion on the practicability and impact of the two decisions on the judicial system in Kenya

The court of appeal decision 

The case in question involved a man who was accused of defiling a four year old child and was sentenced to life in prison.

He appealed the decision to the high court who dismissed his appeal saying it had no merit but he didn't give up and further appealed the decision to the court of appeal.

The appeal was on the basis that the trial was conducted unfairly and that even if the decision on him was fair which he argued it wasn't,the decision on him being given the life sentence was unfair.

The case was heard by a bench of three judges(Justices Pauline Nyamweya, Jessie Lesiit and George Odung) and they came up with a unanimous decision.

They unanimously decided that the person was indeed guilty.However,they sided with him on the unconstitutionality of the life sentence handed to him.

The appeal bench saw it as unfair to outlaw the  mandatory death sentence only to reduce it to life forcing a person to spend the rest of his life in prison until they die which is literally technically the same as a death sentence.

The judges acknowledged the supreme court ruling that found the death sentence to be legal however said that it serves no purpose as the last person to be handed death was Hezekia Ochuka who was senior private in the Kenya Air Force. 

They said that there was no distinction between the death sentence and the life in prison sentence as all 38 death row victims had had their sentence reduced to life in prison.

Additionally,according to the three judges, the purpose of jailing a person is to either deter, rehabilitate, denounce or to retribute for the offence committed.

They said that such a sentence was not an incentive for an offender to reform but was instead simply a slow death sentence.

An additional court of appeal case where the decision was applied 

That decision was reinforced coincidentally by the same judges(Justices Pauline Nyamweya, Jessie Lesiit and George Kiteme had been accused of killing Bahati John on the eve of May 22, 2014, in Taita Taveta County.

The accused denied the charges.

At the heart of the murder case was Kiteme’s disabled niece. The man is said to have accused her of stealing, after which he assaulted her using a stick.

That caused her to start bleeding internally after her veins in the head raptured. In his defence, the convict stated that he found the deceased had eaten the food that had been prepared. Being unhappy, he said, he decided to discipline her using a cane .The girl had epilepsy.High court Judge Jaqueline Kamau had handed him a life sentence.She said he needed time to reflect in jail on his offending behaviour. While handing over the sentence, the judge also stated that there was also a need to protect female members of his family.

Although the three judges found that he had a hand in his niece’s death, they were of the view that the sentence was too harsh.According to the judges, though Kiteme’s conduct was unlawful, the High Court judge ought to have considered that he was taking care of his mother who was then 80 years and he was a first-time offender.

They therefore set aside the sentence and substituted it with 25 years.

My opinions on the court of appeal decisions

I believe that the decision on its own bears some merit and therefore agree on some things but to a certain degree.

First of all,on their argument that it is unfair to substitute the death penalty with life imprisonment,I wholeheartedly agree because both are death sentences,one simply has to suffer for much longer in prison now.It seems very counterproductive to go all the effort of the president pardoning death row convicts just for them to end up dying in prison at the end.

An argument l will come to discuss later in the high court case but one that I think is relevant here is the dignity of life.For a person to be in prison knowing he will die there just seems harsh especially because of cases where a person has been wrongly convicted.We cannot assume law is in a vacuum,there are people who are wrongly convicted or who's sentences are overemphasized by a judge and they have to wake up every day in despair knowing that they'll never see beyond the prison walls.

I agree with the argument they made about the purpose of the judicial system is to deter, rehabilitate, denounce or to retribute as sentencing someone to prison doesn't rehabilitate someone which is the main aim of the justice system.

However,I disagree with how they made that statement then went on to talk about how life imprisonments are not helping in rehabilitation in isolation without addressing the other purposes at length specially deterrence.

Whether or not you agree with it,the general public's interests should always be taken as priority and there are some crimes which should lead to the full force of the law like acts of terrorism and acts to overthrow the government plunging the country into chaos.The law should ensure it takes action to its full extent to deter such crimes even if includes giving out life in prison and that should be a consideration.

That having been said,the two cases show the two sides of the coin.In that in the first instance,l think the court did a good job in being equitable as they gave a 40 year sentence which was an equitable sentence for the defilement of a minor while also allowing for rehabilitation and deterring the crime.However,in the second one the 25 yr sentence wasn't sufficient as the man literally hit a niece he was supposed to protect who had epilepsy with a stick in the head because she ate food in the house.That is disgraceful by the man and deserves a more severe sentence as deterrence especially once you consider the rise of petty domestic murders happening in the country.

I therefore think that a judge should consider matters to do with deterrence on matters to do with hineous crimes which have catastrophic effects on the public like terrorism but not in most cases but should instead take all the factors into consideration and hand out a punishment fairly.

In this particular case,l don't think a life imprisonment sentence was warranted even when the decision was meant deter others although personally l think a more hefty sentence should have been given 

Recent High court ruling

Recently,the high court justice Nixon Sifuna quashed the decision of a lower court to hand a life sentence to a man accused of defiling his 10 year old daughter.

He said that giving someone a life sentence violates the right to human dignity as guaranteed under article 28 of the constitution.

He termed such a sentence as absurd and unreasonable as it was unquantifiable. 

The judge said that while imposing a sentence,the court has to determine the exact number of years,days and time.

He therefore substituted the sentence with a 10 year sentence instead.

Opinion on Justice Nixon,s ruling

I think I resonate more with his argument that it violates human dignity as someone goes there not knowing if he'll come out.

The argument of his on it being unquantifiable and therefore his conclusion that all sentences should have have defined dates has merit.

The only problem and one that doesn't have to do with the specific topic in question but one which would arise if indeed courts follow his directive is his substitution of the life in prison sentence with a mere 10 year sentence for someone who raped his own 10 year old daughter.That just doesn't sit right with me and will almost certainly lead to absurdities in law if lower courts follow it as you can't expect someone who,s commited sexual assault to a grown up to be punished more than a child molester who also simultaneously commited incest which is another crime.

That brings the question to the argument of why change the law if it will lead to massive inconsistencies and absurdities in law.

Areas I disagree with the notion of making life in prison unconstitutional

I think that there are circumstances where life in prison should be enforced:

1.In cases that involve a serial murder or a murder who specifically profiles victims.I think that because it is a matter of public interest as those are people who are known to be a clear threat not only to those close to them but to the general public as their crimes were not crimes of passions or one time crimes hence there is every reason to believe that they,ll do it again.

2.In cases of terrorism eg.I talked at length about deterrence and this is one of the major instances where it should be applied to its full extent.Regardless of whether 100 people or no people die,as long as a person has tried not just committed but tried to commit terrorism,they should spend the rest of their lives in prison to not only deter future attacks of such but as they a risk to the general public if set free.

3.In cases of mass murder eg.public shootings.Again,such acts are very frightening and should be deterred and additionally they are a risk to the general public if released.

4.Cases involving attempts to overthrow the government as deterrence as it doesn't matter what you think about it but any attempt to overthrow mostly usually plunges a country into chaos,undermines democracy and also leads to the deaths of a lot of people.

5.Cases that are so heinous and gross that the person shouldn't even be given a chance for rehabilitation.eg.molestation of little children.A case which happened recently where a person killed his wife,house help and all his little children is an example of that.That person deserves to rot in prison and not see the light of day ever again.

Conclusion

In conclusion,l agree that the crimes where life sentences are given should be reduced as rehabilitation is the main aim of our justice system and having someone live in prison knowing he will die there undermines the dignity of life.Such cases are like cases to do with rape,murder in the first degree and robbery with violence.The only crime l am still debating with myself on whether or not this should apply is attempted murder as it shouldnt really be dealt with harsher than murder but at the same time,if you release him/her,the person he tried to kill becomes a potential target and will live his life in fear.

Having said that,l think like most other provisions,this should have limitations as the interests of the law-abiding members of the public are more important than the rights of criminals with all due respect to them.I have talked about the limitations and generally,the reasoning behind it is so as to deter certain crimes which might have disastrous impacts on the general public like terrorism and to protect the public from people who may actively pose a threat to them if released like serial killers.

I therefore think it's up to the Parliament specifically to implement legislation that will make such provisions more direct and definite as there is a lot of confusion on the subject at this moment in time.

A VICTIM,S RIGHTS TO SEEK PRIVATE COUNSEL IN KENYA

In criminal cases,the victim is usually represented by a prosecutor hired by the government while the accused is represented either by a private lawyer or a government appointed one if he cannot afford one.That is done as a crime is assumed to be committed against the society, therefore, the state's interest is what is considered to have been  harmed. 

It was therefore typically unheard of for people to seek legal counsel from privately hired lawyers in cases in criminal proceedings.

Facts

That however changed when the family of Mitch Barasa ,a student who has been killed by a man called Joseph Waswa asked the judge for permission for their legal counsel to take part in the casr.During a hearing of the case in 2017, counsel for the family of Mitch Barasa cited the constitution and Kenya’s Victim Protection Act and asked the court for leave to actively participate in the proceedings.

The trial judge said that the law has shifted from the traditional parameters of a victim in a criminal case and for that reason counsel for a victim can participate but only passively. She cautioned that the participation could not  be active and contrary to that of the prosecutor.

court of appeal decision

Waswa appealed against this finding, but the Court of Appeal agreed with the high court, saying that the intention of the constitution was that the rights of an accused person to a fair trial should be balanced with the legal rights of the victim of the offence. They said that a victim of an offence may exercise the powers of the court under the Criminal Procedure Code with the permission and directions of the trial judge. They said that seeking legal counsel was  not incompatible with the fair trial rights of an accused person and it did notinfringe the prosecutorial powers of the DPP.

Supreme court findings

When the matter came before the Supreme Court,the judges said the  major issue in the case was whether a victim can actively participate in a criminal trial without prejudicing the accused person’s right to a fair hearing and without interfering with the prosecution’s prosecutorial powers.’

Waswa’s legal team argued that the court of appeal’s decision had the effect of elevating the victim’s legal counsel into ‘a secondary prosecutor’  and that this was unconstitutional.They also said it interfered with the DPP,s constitutional rights.

However, the supreme court justices disagreed with that view.

 They said that for a long time,the criminal trial process was a contest between the state and the accused and  so that the traditional role of victims was often seen as being limited to that of a witness to the prosecution.

They however said the Constitution had ensured that a victim too, has the right to participate in criminal proceedings.

They said that  the rights of the accused cannot be considered in isolation without regard to those of the victim.

That makes sense as criminal justice system should cultivate a process that inspires the trust of both the victim and the accused.

In view of this finding, the judges said they did not see how the participatory rights of the victim violated the fair trial rights of the accused. 

They however said that the DPP  had to retain control and supervision of the trial at all times. 

They also said that the  trial judge had the responsibility to protect the rights of all parties involved as the rights of victims were not supposed to  undermine those of the accused or that of the public interest.

They said that if a victim or a victim’s representative applied to participate in a trial, it was the duty of the trial judge  to work out whether and how that could be done.

They went on to not only find that the legal counsel of a victim can participate but they went on further to say that they can question witnesses on the stand on matters the prosecution failed to question them on which is something that was unprecedented in the judicial system in Kenya.

Conclusion 

In my opinion,l feel that that decision was a great decision by the apex court because for a very long time,victims have had an insignificant role in cases only being used as witnesses which is unfair considering they,re the ones who suffered loss not the state.

It also goes a long way in ensuring that the interests of the victim are represented as the prosecutor does not always represent the interests of  victim as his first priority is to represent the interests of the government and the office of the DPP.