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Recently, the Court of Appeal declared mandatory life imprisonment unconstitutional.

The three-judge decision came from a petition by Julius Kitsao, who was convicted of defiling a four-year-old girl under Section 8 of the Sexual Offences Act. He argued that imposing a mandatory minimum sentence of life imprisonment was unconstitutional. The court agreed with some of his arguments and modified his sentence to 40 years with rehabilitation.

The court found that the mandatory nature deprived the accused of the opportunity to be heard in mitigation. It amounted to unjustifiable discrimination that was unfair and repugnant to the principle of equality before the law. For clarity, mandatory minimum sentences are penalties that prescribe the minimum penalty a court must impose if it finds someone guilty. It does not matter the extent to which the accused participated in the crime or other circumstances that led to his participation.

For example, of the persons convicted for the Willie Kimani, Josephat Mwenda, and Joseph Muiruri murders, only the mastermind received a death sentence. In contrast, three others got between 20 and 30 years in prison for their respective roles in the criminal enterprise.

As a result of this very progressive judgment, the courts are able to punish each defendant according to their unique circumstances. As a result, it has taken things further than the Supreme Court’s ruling that the mandatory death sentence is unconstitutional. The court also directed the Attorney General and Parliament to enact laws to properly outline a life sentence while considering criminal punishment goals.

Prison sentences are a typical means to censure and curb illegal conduct. Furthermore, imprisonment is part of a process designed to punish the offender, prevent the person from continuing the crime, deter others from similar conduct, make amends to victims and, most importantly, rehabilitate the offender from their wayward ways.

Our penal tradition, which contains mandatory minimums such as life sentences and the death penalty, is rooted in the “eye for an eye” thought, emphasising punishment that also deters others from being tempted to similar conduct. Yet, a person’s human rights and human dignity do not end merely because they are incarcerated. As such, prison sentences and conditions should uphold such dignity. Articles 25 and 29 of the Constitution enshrined freedom from torture, cruel and inhuman treatment, and punishment. Progressive thought posits that the death penalty and the prospect of prison for the remainder of one’s life are cruel, unusual treatment and punishment.

The International Covenant on Civil and Political Rights also provides that prisoners be treated humanely, consistent with their human dignity. It also provides that prisons focus on rehabilitation and reformation rather than punishment. Moreover, the 2015 Nelson Mandela Rules, while acknowledging that imprisonment protects society against crime and reduces recidivism, emphasise the need to offer education, vocational training and work, as well as other forms of assistance that are appropriate and available, including those of a remedial, moral, spiritual, social and health- and sports-based nature.

Critics of this decision say the appellate court was insensitive to the crime victim, a baby. They also opine that the finding on life sentencing would embolden and encourage criminals to commit crimes without fear of stiff penalties.

Research has shown that stiff penalties do not necessarily translate to less crime and a safer society. Countries that often use the death penalty and life imprisonment are generally less safe than countries that value rehabilitation and reintegration. The deterrent theory of punishment seems to have failed. As a country, we need to further invest in a justice and prison system oriented towards rehabilitation and reintegration.

First published in The Standard on 22nd July 2023. Kindly reproduced here with permission from The Standard.

Demas Kiprono is a human rights lawyer and a Campaign Manager at Amnesty International Kenya. He writes in his personal capacity. Email: [email protected]

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