Demystifying Court of Appeal’s life imprisonment judgments

Imprisonment for the rest of one’s life is unconstitutional, as it rules out hope for release.

The Court of Appeal has, in the last year, signalled new hope in the field of criminal justice. In two progressive and groundbreaking decisions, it has held that provision in our law for people to be sentenced to ‘life imprisonment’, meaning for the rest of their lives with no structured arrangements for early release (an indeterminate life sentence), is unconstitutional. This piece identifies the significant contributions and developments brought about by these decisions.

Human rights-based law

The 2010 Constitution heralded milestone aspirations, establishing a human rights state as the core. For instance, the Constitution demands Kenya’s entire legal order undergoes refurbishing. Article 20(3) decrees the courts should develop the law to conform to the Bill of Rights – in the way they interpret written law, and develop the judge-made law.

The all-pervasive Constitution declares its own supremacy and requires all laws to align with the Constitution (or be unconstitutional). There can be no parallel system of law that can operate outside the ambit of the Constitution. Courts must infuse human rights and values into all aspects of criminal law, including sentences. This is precisely what the Court of Appeal did in these cases, both involved defilement of a girl under seven years, and a conviction under the Sexual Offences Act that imposes a fixed (mandatory) ‘life sentence’ for this offence. Until now ‘life’ has meant life in Kenya.

Kitsao Manyeso: A right to hope

In Julius Kitsao Manyeso v Republic [2023] KECA 827 decided in July 2023, the appellant had appealed unsuccessfully to the High Court before launching a second appeal to the Court of Appeal. He challenged the sentence, arguing that both the mandatory nature of the life sentence and the indeterminate life sentence were unconstitutional.

The Court of Appeal in Malindi agreed with the appellant and held that the mandatory nature of the life sentence was unconstitutional. This holding follows the earlier decision of the Supreme Court in Muruatetu, which held that the mandatory nature of the death sentence was unconstitutional. Although in the second Muruatetu ruling, the Supreme Court emphasised that they had decided only about murder, we now see courts deciding, quite rightly, that the Supreme Court’s reasoning cannot be limited to murder cases.

The Court of Appeal held that “such a sentence denies a convict facing life imprisonment the opportunity to be heard in mitigation when those facing lesser sentences are allowed to be heard in mitigation.”

In these cases, the Judiciary is saying that sentencing is part of the right to a fair hearing, and Parliament cannot take away the judge’s role in deciding the sentence.

The Court of Appeal made another fundamental holding: that an indeterminate life imprisonment is unconstitutional. Such a sentence without possibility of review is degrading and inhumane treatment. The court said the right to hope also applies to convicts. The human rights provisions of the Constitution reject the view that people can be locked up in an irreversibly closed gaol, ruling out the rehabilitation aspect of imprisonment.

Having found the existing law unconstitutional, the court was, it said, free to decide the appropriate sentence in this case. It proceeded to sentence the appellant to 40 years in prison. This was to serve both the rehabilitative and deterrence functions of sentencing.

Nyamari Ayako: Redefining life imprisonment

In Evans Nyamari Ayako v Republic (2023)eKLR decided in December, the facts were a bit different from the first one. The state showed that the appellant was violent, strangled the victim and threatened to kill her. After defilement, she had to undergo surgery to repair the damage to her private parts.

In following the Kitsao case, the Court of Appeal, different judges sitting in Kisumu, held that an indefinite life imprisonment sentence is unconstitutional. The court said that “indeterminate life imprisonment is a cruel and degrading punishment which violates our constitutional values.” The court further said indefinite life imprisonment without a realistic possibility of parole deprives the offender of any prospect of reforming and re-entering society and is tantamount to a “living death sentence”.

The court held that life imprisonment could only be saved from unconstitutionality if it is limited to a specific number of years. It considered the trend in various countries, including South Africa, Malaysia, Pakistan, Norway, Germany and Zimbabwe, where life imprisonment has been defined by either Parliament or the Judiciary to mean a sentence of 15 years to 40 years. The Kenyan court concluded by holding that life imprisonment in Kenya “does not mean the natural life of the convict. Instead, we now hold, life imprisonment translates to thirty years’ imprisonment.”

Where does the law stand?

Some conclusions from these cases are clear. First, the legal provision of an automatic life sentence as punishment for defilement of children under 12 is unconstitutional. Second, indeterminate life imprisonment without the possibility of parole is unconstitutional. Third, life imprisonment without a realistic possibility of parole deprives the offender of any prospect of reforming and re-entering society.

Beyond that there is some uncertainty. The first (Malindi) court changed the specific sentence for the specific appellant, in the light of the facts of the case. Its ruling would delete life sentences from the statute book, leaving future courts free to fix the sentence (though not as life). But the Kisumu court did not consider in detail the specific case, but seems to have pronounced a general rule: that where a statute provides for life imprisonment as the sentence, courts are to read the same to mean 30 years, and not the natural life of the convict.

If the latter court’s approach is adopted, it seems that courts will have no discretion: if the statute says ‘life’ it means 30 years. Did they mean to substitute a mandatory 30 years for mandatory life, or put a maximum of 30 years against the earlier court’s 40 years?

An important implication of either approach is that in such cases future prisoners will have the possibility of early release (remission) for good behaviour, a crucial part of rehabilitation but excluded in the past for ‘lifers’.

What are future courts supposed to do? Magistrates and High Courts are supposed to follow Court of Appeal decisions on issues of law. In case of conflict of Court of Appeal decisions, High Courts may choose. However, it seems likely that the Supreme Court will rule on the issues, as at least one case is headed there.

Some might argue that all the Court of Appeal could do was decide about the Sexual Offences Act. But the reasoning, in both courts, is equally applicable to any use of mandatory and indeterminate life sentences.

Changing face of criminal law

From these decisions, we can see winds of change are blowing in criminal law. Kenya’s sentencing guidelines recognise rehabilitation and reformation as central to our penitentiary system, while also recognising punishment and retribution, (an eye for an eye), deterrence (of the criminal and others) and prevention of future offending. This changing face of criminal law signals an end to the dominantly retributive approach of criminal law, and the beginning of a criminal law system centred on rehabilitation and social reintegration.

The purpose of rehabilitation stressed in Kenya’s criminal law and sentencing guidelines can only be realised if offenders have a realistic hope of release. The rehabilitation purpose of criminal law requires that there must be an opportunity for social integration of the offender.

A final issue is – what about all the other prisoners already sentenced to life, including those whose sentences were commuted from death to life? Following the Muruatetu case, a system of resentencing was set up. The Ayako case approach would not require this – just that they all be treated as having been sentenced to 30 years, and considered for early release on that basis.

Is it possible that some genuinely ought not to be released – or not so soon? We need some serious policy discussion.

Joshua Nyawa, Litigation counsel, rule of law and good governance, at Katiba Institute

This article was first published by the Star Newspaper


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