Return life imprisonment
Judges can (and do) hand down prison terms that are, essentially, life sentences.
This month, the Court of Appeal declared the mandatory nature of life imprisonment under the Sexual Offences Act unconstitutional. A sentence is said to be mandatory when a judge is obliged by law to mete it out upon conviction, regardless of the peculiar circumstances.
This, Justices George Odunga, Jessie Lessit and Pauline Nyamweya found, is an affront to judicial independence, as it takes away the court’s sentencing discretion by imposing a penalty predetermined by Parliament. The judges also found it discriminatory that convicts of lesser offences are allowed to mitigate their sentences. To this extent, the court was on solid legal ground and should have stopped there.
But the three-judge bench proceeded to rule that life imprisonment itself amounts to degrading and inhuman punishment, in addition to violating the right to dignity and is, therefore, unconstitutional.
The court departed from its earlier finding endorsed worldwide, that ‘degrading and inhuman punishment’ is that which is disproportionate to the offence. Our laws reserve the life sentence for the most serious offences, and few would argue that any sentence is too harsh for a defiler, for example.
Even if one were to accept the court’s premise that indeterminate imprisonment is too severe, outlawing it hardly solves the problem. Judges can (and do) hand down prison terms that are, essentially, life sentences. A 30-year-old jailed for 50 years and released at 80 will find it all but impossible to adjust to ‘normal’ life, and is arguably better off spending the remainder of his days incarcerated.
Also, dignity is a value principle rather than a right in itself. Every person has inherent dignity, which is the foundation for enjoying human rights in the first place. It is, therefore, paradoxical to suggest that dignity can be denied, as that would remove the very basis for rights and, hence cancel those rights.
The court also opined that life imprisonment is unnecessary as a deterrent measure since a convict may be sufficiently rehabilitated and no longer a danger to society after a number of years in prison. True, except that while the penalty may not deter the prisoner, it deters potential similar criminals.
The appellate court’s verdict is, therefore, bad law and should be reversed pronto.
Mr Arori is an advocate of the High Court of Kenya. [email protected].
