Unlocking the Irreversibly Closed Gaol Gates: Kenyan Court Declares Life Imprisonment Unconstitutional

"Prison cells" by miss_millions is licensed under CC BY 2.0.

On 7 July 2023, the Kenyan Court of Appeal in a landmark decision restored the right to hope by issuing a ‘judicial death certificate’ to life imprisonment.

The Court found that life imprisonment was antithetical to fundamental human rights for denying convicts the possibility of reviewing their sentence and any prospect of release, which is a mockery of the rehabilitative purpose of punishment.

Previously, the constitutionality of life imprisonment was also challenged in the Muruatetu case which declared the mandatory nature of the death penalty unconstitutional. However, the Supreme Court refused to address the issue because the matter had not gone through the judicial hierarchy and was being raised for the first time at the Supreme Court.

The recent decision of the Kenyan Court of Appeal in Manyeso case sends the central message that rehabilitation must lie at the core of punishment, joining the league of Zimbabwe and Namibia.

Context of the Manyeso case

The Appellant was convicted under the Sexual Offences Act for defiling a minor aged 4 ½ years. The Magistrate sentenced him to life imprisonment. Notably, a magistrate is mandated to sentence a convict to life imprisonment upon making a finding that the defilement was committed against a minor below the age of 11 years.

The Appellant challenged both the conviction and sentence at the High Court and launched a second appeal at the Court of Appeal. He argued that the mandatory nature of life imprisonment was unconstitutional in line with the Muruatetu decision as it denied convicts the chance to mitigate hence violating their right to equality, dignity and to be treated in a human and non-degrading manner.

The Court found that the mandatory nature of a life sentence was unconstitutional to the extent that it denied convicts the right to mitigate. Furthermore, it held that the reasoning in Muruatetu equally applies to the imposition of a mandatory indeterminate life sentence.

This finding is commendable on several fronts. Firstly, followers of Kenyan jurisprudence would note that the Supreme Court in 2021 limited the application of the 2017 Muruatetu decision to mandatory death sentences in murder charges through the Muruatetu directions. This limitation is however unjustifiable since the prescriptive ratio decidendi in Muruatetu was that a mandatory sentence violates the Constitution, and it cannot be said that other judges down the hierarchy are prohibited from following it. This is the position that was recently adopted by the Court of Appeal in Onzere.

Secondly, the important point being conveyed by the Court is that the Constitution seeks to establish a human rights state, wherein strict adherence to the principles of the ‘human rights corpus’ is paramount. This means that all aspects of the law must be brought in line with a human rights-oriented ideology, rendering any kind of mandatory sentence incompatible with this test.

“The clear message from the judiciary is that it is ready to interfere with sentences for as long as they violate the Constitution.”

The role of human rights

The Court relied on the decision of the European Court of Human Rights in Vinter to hold that an indeterminate life sentence “without any prospect of release or a possibility of review is degrading and inhumane punishment, and it is now a principle in international law that all prisoners, including those serving life sentences, be offered the possibility of rehabilitation and the prospect of release if that rehabilitation is achieved.”

Innovatively, the Court centred its analysis around the rehabilitative purpose of criminal law. It looked at the Kenyan sentencing policy guidelines and article 10(3) of the International Covenant for Civil and Political Rights (ICCPR) which recognises reformation and social rehabilitation at the centre of the penitentiary system.

Further, the Court paid homage to Muruatetu which held in obiter that “sentencing should not only be used for retribution, it is also for the rehabilitation of the prisoner.” The court found that it is inhumane to lock convicts in prison permanently despite the possibility of them reforming.

The Court made the point that sentences must give convicts a belief in the convicts’ worthiness, a possibility that they can reform and can be released from prison. This is in line with what has been called the ‘progression principle’ by the Grand Chamber in Dickson v UK; that a prisoner must be able to move through the prison system from the early days of a sentence “when the emphasis may be on punishment and retribution, to the latter stages, when the emphasis should be on preparation for release.”

Separation of powers

Although the argument on separation of powers does not feature in the decision, critics such as Hiba tweeted ‘With all due respect to the doctrine of separation of powers courts should leave the legislative work to parliament!’. Such a concern is also evident in the jurisprudence of the Court of Appeal in Njuguna where the Court held that the judiciary should not usurp the mandate of parliament to outlaw a sentence.

These views however ignore the fact that the Constitution does not authorise absolute separation of powers or an unquestioned parliamentary sovereignty. Ours is one of partial separation with checks and balances which endorses supreme constitutionalism under the Constitution as the supreme law and all other laws must bow to it.

In other words, the legislature must act within the bounds of the law and where it exceeds these limits, the Court must declare such a law as unconstitutional. Although it might be said that invalidating a law is a strong medicine, this is the medicine that is prescribed by the Constitution.

Secondly, Article 20(3) of the Constitution imposes a constitutional chore that the judiciary cannot ignore without sinning against the Constitution. This provision imposes an obligation on the judiciary to develop existing laws such that they align with the constitutional objectives, fundamental values and the Bill of Rights. Therefore, no law can continue being at odds with the constitutional scheme.

Courts have been given a constitutional imprimatur to ensure that every law complies with the Constitution and the naysayers of the Court’s role cannot misapply the doctrine of separation of powers to disempower the Courts. Neither can judges turn their backs when constitutional trespasses are pointed to them. Even when the decision might leave someone’s ‘nose twisted and bleeding’.

Victims participation in sentencing proceedings

There is an old monarchial saying that goes  “So execute justice that you forget not mercy.” This means that justice should be done to both the offender and the offended. This would require that victims and their families are not neglected but be given an opportunity so that they participate meaningfully. At the same time, there is a need to adopt restorative justice in addition to the traditional retributive justice measures. The finding of the Court of Appeal should not be seen as silencing victims but rather as promoting restorative justice, which is also beneficial to the victims.   

A bleak future for the death penalty in Kenya

The decision is a great contribution to the jurisprudence on the constitutionality of sentences. However, in my view, I see dark clouds gathering and soon enough, the rain will start beating down on the death penalty in Kenya. The clear message from the judiciary is that it is ready to interfere with sentences for as long as they violate the Constitution.

This is a great testament that laws and sentences ‘caught up in a time warp’ will soon be ‘swept into the dustbins of history’. The death sentence which is a colonial relic cannot be justified under the constitutional dispensation which demands respect for human rights and the creation of a human rights state.

The decision reiterates the point that the lex talionis traditional approach of punishment has come to an end and the Constitution has heralded a new era which is centred on rehabilitation and social integration rather than the retrogressive and archaic retributive approach.