Life Sentence Is Unconstitutional, High Court Makes Landmark Judgment

 

The High Court has declared the life-in-prison sentence unconstitutional in a landmark judgment in an appeal case before Justice Prof. Nixon Sifuna. Justice Prof. Nixon Sifuna (pictured above) concluded that a life sentence took away human dignity and, hence, was unconstitutional.  Sexual offences laws in Kenya Justice Sifuna presided over the appeal filed by Ndung'u Ndung'u, whom, Senior Resident Magistrate Savai Agande sentenced to life after convicting him for committing incest on his 10-year-old daughter on July 21, 2022. Ndung'u was charged with incest, contrary to Section 20(1) of the Sexual Offences Act No. 3 of 2006 at Kigumo Law Courts. He was accused of committing the offence at Wemba Location, Murang'a county, on his 10-year-old daughter on May 18, 2017, and was arraigned in Sexual Offences Case No. 27 of 2017. Ndung'u denied the charge, and the case proceeded to a hearing, whereafter, the trial court delivered a judgment on July 21, 2022, convicted him of the offence, and sentenced him to life imprisonment. Appeals in Kenya's law Dissatisfied with the judgment, Ndung'u appealed to quash the conviction and set aside the sentence. The appeal was made through written submissions before Justice Sifuna. "Upon carefully reading the petition of appeal, I find that this court needs to determine the following issues: Whether the prosecution discharged its burden of proof and proved its case to the required standard of beyond reasonable doubt? Whether there was sufficient evidence on record to sustain the conviction and whether the imprisonment sentence imposed by the trial court was unreasonable, excessive or too harsh as asserted by the appellant in this appeal," read Sifuna's introduction of the judgment delivered on March 19, 2024.  Upon reading the submissions, Sifuna agreed with the trial court that the case of incest against the accused was proven beyond reasonable doubt and upheld the guilty verdict. However, Sifuna disagreed with the trial court's sentence and passionately, philosophically, and practically explained his reservations in the landmark judgment TUKO.co.ke saw. Life sentence in Kenya "A life sentence is a sentence sui generis. In that, whereas philosophically and supposedly imprisonment is for a duration of time only, it is in actual sense imprisonment that is indeterminable, indefinite, uncompletable, mathematically incalculable, and therefore quantifiable only for the convict’s entire remainder of his lifetime," Sifuna observed. The judge even described the life sentence as deceptive, especially to the person serving it dutifully. "It is a deceptive sentence, in that one commences it thinking that he will one day complete it and be released from prison. Later, he realises that it is imprisonment he can never and will never complete or fully serve, no matter how hard he serves or keeps counting days. "The more he races to complete it, the longer and eternally elusive it becomes. The more he serves it, the more it drifts beyond the horizons. Logically, after serving it for a long time, he stops serving it and lets the sentence serve him and remain his lifestyle for the entire remainder of your lifetime," Sifuna expounded. What is a life sentence? The judge explained that focusing on the longevity of a life sentence bombarded the convict with despair, as it would never come to an end. Justice Sifuna, looking at the sentence from a different perspective, said that convicts who die within one week, month, or year while serving a life sentence neutralise the deterrence goal of a sentence. "May I now turn to the short of it. Where one serves a short time and dies. For instance, a convict serving a life sentence dies after serving a week, a month or one year only. In that case the convict will have served his sentence for a shorter period than a convict serving two years for instance. Is that one year in prison a deterrent or proportionate to his heinous crime of, for instance murder, robbery, rape, defilement, or incest as in this case?" he posed. The learned judge argued that, in imposing a term of imprisonment, courts need to state it in days, months, or years and with a known commencement date. He said, this way, prison authorities, the convict, and his family would, after that, mathematically calculate the remainder term and the certain completion date. Sifuna said that even though the commencement date of the life sentence was known and determinable, the completion date remained unknown right from the commencement. The judge said that after issuing a life sentence, its completion date remained unknown and mathematically incalculable, hence permanently indeterminate, indefinite, ad infinitum, and uncompletable. He described it as a sentence whose actual duration was unknown at the time it was imposed, mathematically incalculable, and mathematically indeterminable. "It is a sentence whose date of completion is, at the time of sentencing, mathematically unknown, unknowable, and indeterminable, even to the court issuing it. Its duration is pegged to the convict's unknown lifetime and unknown date of death. It is imprisonment that is literally uncompletable and interrupted only by death. In my view, the death of the convict only interrupts it (an act interruptus) and extinguishes it, rather than terminating it," explained the legal scholar. Differences between life and death sentences He said the life sentence was akin to a death sentence, hence the reason that many death sentences in Kenya in the recent past had been commuted to life sentences. Justice Sifuna argued that the death and life sentences were two sides of the same coin regarding their severity and permanence. He said the only difference was that one of the sentences was terminal and another was not. "One of the common denominators between the two is that once sentenced, the convict is permanently deleted from society and will never return to it, except through perhaps a stealth escape or daring dash in a prison break, such as happened recently in Haiti, where the actions are criminalised and are punishable offences," added the judge. Based on the cited reasons, Justice Sifuna said a life sentence was not only archaic in the current civilisation but unreasonable and absurd. Committed No Offence, Court Rules Life sentence declared unconstitutional According to the judge, the life sentence was indignifying as it violated the right to human dignity in line with the Constitution of Kenya 2010. "It is, therefore, unsupportable, irrespective of the logic or whatsoever rationalisation of aggravating factors that may be advanced in support. Having found that the trial court properly convicted the appellant, his appeal on conviction fails, and I uphold the said conviction accordingly. "As to the life sentence that the appellant is currently serving, I set it aside. I substitute it with a sentence of 10 years imprisonment, effective July 21, 2022, the date of the current sentence. The appellant’s appeal herein has therefore succeeded partially, as to sentence only," Justice Sifuna ordered. This verdict sets a new precedent concerning the constitutionality of a life sentence and is likely to attract more appeals from convicts sentenced to life in prison. 

by  Michael Ollinga Oruko