Life sentences, country’s constitution and the courts

Life imprisonment is a sort of living death.

Various Kenyan courts have said life means life – and have held that (unlike other prisoners) a lifer cannot benefit from remission —having their sentences reduced for good behaviour.

It means that the idea of rehabilitation and re-entering society is not prominent in the treatment of lifers, though in fact most do work. A sensible provision for annual reports on lifers, their behaviour and their condition, in the Prison Rules 1963, is not working, and has maybe never worked.

So lifers can be released only by the President on the recommendation of the Power of Mercy Advisory Committee (POMAC). The number of lifers applying has been increasing – to 94 in 2023-24.

Unfortunately, POMAC gives numbers of petitions in its annual reports, but not outcomes of petitions. Apparently by about 2022 “199 long term offenders majority of whom were on life imprisonment, had been released through the grant of pardon.”

I have failed to find gazette notices listing approved petitions for pardon. Those published years ago gave names only. A prisoner is allowed only two applications to POMAC – and the second only if there is new evidence. This is much less effective than those 1963 Rules could have been in giving hope of release.

The story

Various Acts of Parliament set life imprisonment as the maximum punishment for certain crimes. Some Acts make life the only sentence in some circumstances, including the Sexual Offences Act that makes it the only sentence for defiling a girl under 12.

In 2011 Evans Ayako was sentenced to life imprisonment for defiling a 6-year-old girl. In May 2017 his appeal was rejected by the High Court. In December 2017 the Supreme Court decided in the Muruatetu case that fixing the death sentence for anyone convicted of murder was unconstitutional.

In 2023 Ayako’s appeal to the Court of Appeal was heard. By then the Court of Appeal had begun to apply reasoning similar to Muruatetu to other sentences fixed by law – or where a minimum sentence was fixed. In fact the DPP lawyer agreed with the argument that the fixed life sentence was unconstitutional. The Court of Appeal described at some length the way many countries have chosen to abolish sentences of unclear length, and decided that “life” in Kenya should mean 30 years.

This year the case reached the Supreme Court.

That court declared Court of Appeal decision wrong. I find a lot of difficult, even worrying, issues in these two decisions.

In the Court of Appeal

One would imagine that Court of Appeal judges would endeavour to make their judgments “Supreme Court-proof”. In Ayako the Court of Appeal could have gone into more detail, applying Muruatetu reasoning to the case in front of them.

For example, a fixed sentence makes mitigation (the convict trying to convince the court to be lenient in sentencing) irrelevant, goes against the constitutional concept of fair trial (though of course the death sentence is so grave that the consequences are even more serious).

The Court of Appeal did mention that the failure to allow mitigation violates the right to equality, and also is contrary to respect for the person’s dignity (points made in Muruatetu). They added that life imprisonment is cruel and inhuman punishment (against Article 29(f)). Overall my sense is the judgment could have been more detailed. But did they think that it would never get to the Supreme Court because the DPP had been in favour of their judgment?

It is often said courts are not the best place for complex social realities and the legal responses to be analysed and decided. This is one such situation – there is a huge variety of ways countries have dealt with the life sentence issue.

It is impossible to say there is international consensus on the solution even if there is on the problem.

But a court must find a solution as well as identify a problem. The court chose to make that solution fixing “life” at 30 years. But what happens if a prisoner is really not able to be released into society? What about other sentences?

Could a court, in a case involving a maximum of life, actually impose a fixed sentence of 40 years?  Many loose ends remain.

The Supreme Court in Muruatetu urged action on life imprisonment by government. Nothing has happened. Did the Court of Appeal, I wonder, hope that their judgment would push government or Parliament (or even the Law Reform Commission) into doing something about life sentences?

In the Supreme Court

Why did the DPP appeal against a decision that the office had supported? A new DPP came into office not long before the Court of Appeal decision in Ayako. I hope the decision to appeal did not arise because of the change of an individual – or worse from government pressure.  Or maybe the office hoped for a Supreme Court ruling on this complex issue.

The Supreme Court held that the Court of Appeal had no power to decide that the sentence was unconstitutional because that argument had not been raised at the High Court.

This is the usual rule. The consequences are serious. Muruatetu presented the possibility of a new approach to mandatory sentences. It was decided between Ayako’s High Court and Court of Appeal hearings. The traditional approach means that someone like Ayako could never raise a new line of argument even if it would have been almost unimaginable earlier. And how about people with no, or incompetent, lawyers?

I am also very doubtful about the court’s view that, because Article 165 gives the High Court the power to make constitutional decisions, no higher court can do it except on appeal. This is the constitution; every court is bound by it.

The Supreme Court held that such matters should be decided not by a court but by Parliament, with public participation. Yet the court had done just that by declaring the mandatory death sentence unconstitutional without public participation – though with the support of the Attorney General and DPP. And, as implied earlier, we may have to wait forever for Parliament.

The Supreme Court began retreating from its Muruatetu position soon after the decision. True, the consequences of Muruatetu were complicated, involving resentencing a large number of people. And then some courts began to apply it to other fixed or minimum sentences. In 2021 the court issued “directions” which said their Muruatetu judgment did not invalidate “mandatory sentences or minimum sentences in the Penal Code, the Sexual Offences Act or any other statute”. That was correct. But courts analysing earlier decisions, including of higher courts, and deciding whether the reasoning can apply to a different situation is how law develops. It is the fundamental technique of the common law. And although the actual decisions on law of the Supreme Court are binding on lower courts, their observations on what they did not decide are not – even if they should be treated with respect.

The problem here is that the court largely treated “life” as a matter that should not have been decided. It did not set out fully why the court thinks a mandatory penalty for murder differs from others. It seems to be thinking that its “directions” end the matter – no other fixed or mandatory sentences are unconstitutional.

A final matter for concern is the presence, not just as a member of the Supreme Court but sitting on the bench in this case, of Justice Njoki Ndung’u. As MP, she sponsored the Sexual Offences Bill as a private member’s bill. It would not be considered appropriate for a judge who decided a case in a lower court to sit on appeal on the same case, and I suggest it is not appropriate for the architect of a Bill to sit as a judge to help decide its constitutionality.