Appellate judges Pauline Nyamweya, Jessie Lessit and George Odunga declared that it is not fair to keep a convict behind bars for an indefinite time period until they die, since that will amount to a death sentence which has been outlawed by the Supreme Court.
“Indeterminate life sentence is simply a slow death sentence. It is unfair to outlaw mandatory death sentences only to order a person to remain behind bars until they die. It is unconstitutional to jail a person for life since a life sentence should not mean the natural life of a prisoner,” ruled the judges.
The judges said they based their precedent-setting decision on a finding by the European Court of Human Rights that an indeterminate life sentence without any prospect of release is degrading and amounts to inhuman punishment.
Under the Kenyan Penal Code, capital offences like murder and robbery with violence as well as defilement are punished by either death sentence or life imprisonment. The appellate judges, however, stated that the purpose of jailing an offender should be to deter, rehabilitate or denounce, but should not involve keeping someone behind bars until they die.
The decision has received very different reactions from the state and human rights defenders. Whereas the Office of the Director of Public Prosecution disagreed with the findings, human rights groups applauded the judges for making a bold move to uphold the rights of convicts.
Principal Prosecution Counsel Victor Owiti disagreed with the findings, stating that a life sentence is a constitutional punishment and that it should be left to parliament to enact a law to determine the maximum number of years a person should serve in prison if jailed for life.
“Life sentences should not be unconstitutional, and although the decision was in line with international human rights protocols, the judges should have left it for parliament to enact a law which should determine the number of years a person should serve if sentenced to life,” said Owiti.
Demas Kiprono, a human rights lawyer and campaigns manager at Amnesty International Kenya, said they are in total agreement with the judges that life sentences are unconstitutional because they degrade the dignity of convicts.
According to Kiprono, life imprisonment contravenes Article 25 of the Constitution which provides that fundamental rights and freedom from torture and cruel, inhuman, degrading treatment or punishment shall not be limited.
“The purpose of criminal justice should not be to punish someone for life. Even if someone has done bad crimes, we should concentrate more on rehabilitation than subjecting them to cruel, degrading and inhumane treatment,” Kiprono noted.
Judges Nyamweya, Lesiit and Odunga made the declaration in an appeal filed by Julius Kitsao who had been sentenced to life imprisonment for defiling a four- year-old girl.
The judges set aside the life sentence and substituted it with 40 years in prison to run from the date he was convicted in October 2013.