The Higher Court docket of Kenya Strikes Down Lifetime Imprisonment – Indian Constitutional Legislation and Philosophy
In July of last 12 months, the Kenyan Courtroom of Appeal had struck down obligatory lifestyle imprisonment as unconstitutional. As the evaluation on this site pointed out, the judgment was shipped in a context in which the dying penalty in Kenya has not definitively been held unconstitutional (just previous week, in point, a Kenyan Court docket controversially handed down a demise sentence). Even so, even as the discussion around the death penalty continues, the High Courtroom – in a judgment delivered on 19th March 2024 – held life imprisonment alone to be unconstitutional.
The judgment – Justus Ndung’u Ndung’u vs Republic, authored by Justice Nixon Sifuna, is remarkably small, coming in at 6 pages. It was an appeal from each a conviction and a sentence (for incest), and in fact, a lot of the judgment is concerned with re-appraising evidence. The Court docket finds that the conviction was justified, and upholds it. This then provides it to the issue of sentence: the justice of the peace experienced imposed a lifestyle sentence. The Court finds it unjustified not especially on the information of this case, but rather, on the basis that the sentence of existence imprisonment by itself is unconstitutional. The heart of the analysis is in paragraph 10, where by the Court docket notes:
A lifetime sentence is a sentence sui generis. In that, whereas it is philosophically supposedly imprisonment for a length of time only, it is in actual sense imprisonment that is indeterminable, indefinite, uncompletable, mathematically incalculable, and therefore quantifiable only for the convict’s overall remainder of his lifetime.
Variants of this examination are recurring in the succeeding paragraphs, just before Sifuna J concludes that the sentence is, thus, archaic, unreasonable and absurd, and violates the correct to human dignity less than Article 28 of the Kenyan Constitution (paragraph 17). Reconstructing the reasoning, at its coronary heart, the situation appears to be that in contrast to all other sentences, lifetime imprisonment is not definite, but pegged to a contingent celebration (the end of the convict’s everyday living), which could take place at any presented time. Sifuna J. hence compares it to the demise penalty (paragraph 16), and also highlights the prospective absurdity of a particular person who dies in jail before long soon after becoming sentenced for a heinous crime, as opposed to another person who spends yrs guiding bars for a considerably less really serious criminal offense (paragraph 12).
Neither of these two arguments are, however, totally convincing. The analogy with the death penalty is hanging and powerful, but it is unclear if it supports the argument for unconstitutionality, supplied that the death penalty by itself has not been struck down still (in truth, a circumstance where by lifetime imprisonment is unconstitutional but the death penalty is constitutional feels somewhat anomalous!) And the possible absurdity of someone dying an early demise guiding bars is not pretty an absurdity if we contemplate that the main penological intention of lifetime imprisonment is avoidance – i.e., to protect against a convict from committing a crime again. From that perspective, there is nothing at all especially absurd about a convict dying quickly just after staying sentenced, as there is no dilemma of recidivism after loss of life. It is, of system, one more make any difference whether punishment dependent only on avoidance, and totally disregarding reformation or rehabilitation, can move constitutional muster that, nonetheless, is not deemed in the judgment.
We therefore appear back to the issue of indefiniteness, and the violation of the proper to dignity. I consider that the argument – though it is not spelt out in the judgment by itself – is primarily 1 of dehumanisation, or contemplating the convict purely in instrumental terms. In assuming that an individual can in no way be re-integrated into culture, the life sentence totally strips them of agency, or the capability to make diverse possibilities in the long term. The locus of the violation of human dignity, I would suggest, lies in this assumption.
Two factors then arise with respect to the judgment itself. The very first – as noted higher than – is that the judgment does not, in its thought of the dignity query, have interaction with penology, or the targets of prison punishment. In my look at, putting down a sentence provision as unconstitutional is hard without the need of at least looking at what the mentioned target of the punishment is, and how the punishment alone relates to that intention. Certainly, that is a important ingredient of the proportionality exam, which is the overarching foundation of constitutional difficulties, particularly of this mother nature. Indeed, the paragraph above – that attempts to excavate the normative basis for the indefiniteness argument – finds itself heading back to the penological aims of the everyday living sentence (as it should).
The 2nd level is a level of procedure: notably, it does not appear that the constitutionality of the life sentence was challenged in this situation (if it was, then the entirety of this paragraph can be ignored). I do not have entry to the pleadings, but permit us go by the Court’s very own framing of the query of sentence: “Whether the imprisonment sentence imposed by the demo court docket was unreasonable, extreme, or too harsh.” This is not the language of a constitutional problem, but a plea for sentence mitigation on the information of the case. The question then occurs: can the Superior Courtroom strike down the everyday living sentence devoid of it staying less than challenge? Would not, for illustration, the Point out have to be set to precise see, so that it can defend the constitutionality of the sentence in people specific phrases?
Although, hence, I agree with the Superior Court’s choice to strike down the lifestyle sentence, and I uncover finding the evaluation in how indefiniteness violates the proper to dignity, the Court’s reluctance to have interaction in a comprehensive-blown evaluation of the dignity question (such as making use of the proportionality exam), as well as the probability that there was no constitutional obstacle produced, could possibly depart the judgment susceptible on enchantment. It will be exciting to see what comes about at the Courtroom of Attractiveness!
