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.
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.
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