Does an Indeterminate Life Sentence Amount to Inhumane Treatment?

Does an Indeterminate Life Sentence Amount to Inhumane Treatment?

The Court of Appeal in Criminal Appeal No.12 of 2021- Julius Kitsao Manyeso -Versus- Republic has held that imposition of a mandatory indeterminate life sentence, is an unjustifiable discrimination, unfair and repugnant to the principle of equality before the law under Article 27 of the Constitution. In addition, an indeterminate life sentence is also inhumane treatment and violates the right to dignity under Article 28 of the Constitution.

The Appellant was convicted for the offence of defilement by a Magistrate Court and was handed a life sentence. He proffered the first appeal to the High Court, which was dismissed. In the second appeal to the Court of Appeal, the Court generally dismissed his grounds of appeal and thereby upheld his conviction. However, the issue of sentence raised by the appellant formed the crux of the appeal.

The court of Appeal took cognizance of the Supreme Court clarified application in Francis Karioko Muruatetu & another -Versus- Republic [2021] Eklr where it limited its finding of unconstitutionality of mandatory sentences to mandatory death sentences imposed on murder convicts pursuant to section 204 of the Penal Code. Notwithstanding the Supreme Court clarified application, the Court of appeal held the view that the reasoning in Francis Karioko Muruatetu & Another v Republic [2017] eKLR equally applies to the imposition of a mandatory indeterminate life sentence, namely 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.

The rationale is rooted in the fact that, an indeterminate life sentence without any prospect of release or a possibility of review is degrading and inhuman punishment, and that it is now a principle in international law that all prisoners, including those serving life sentences, be offered the possibility of rehabilitation and the prospect of release if that rehabilitation is achieved.

The Supreme Court in Francis Karioko Muruatetu & Another -Versus- Republic [2017] eKLR had recommended to Attorney General and Parliament to commence an enquiry and develop legislation on the definition of what constitutes a life sentence. As such, a sentence of life imprisonment is unconstitutional under the Constitution and international instruments ratified by Kenya.

In the end, the Court partially allowed the appeal on sentence and set aside the sentence of life imprisonment imposed on the appellant and substitute therefore a sentence of 40 years in prison to run from the date of his conviction.

It is clear that courts, not only in Kenya, but also internationally, are frowning upon the mandatory indeterminate life sentences and mandatory death sentences and consequently, they will acquire the status of a peremptory norm (Jus Cogen). 

The full judgement can be accessed at Kenya Law Report.