- The judge added that the sentence"permanently" deletes a convict from society and violates the right to human dignity.
Image: The Star
The High Court in Murang'a has termed life imprisonment as unconstitutional stating that it is unreasonable and absurd.
In a judgment by Justice Nixon Sifuna, he compared it to a death sentence, saying even though one is terminal and the other is not, they are the two sides of the same coin in terms of their severity and permanence.
He added that the sentence"permanently" deletes a convict from society and violates the right to human dignity.
"It is also an indignifying sentence, hence violates the right to human dignity, guaranteed under Article 28 of the Kenya Constitution 2010. It is therefore unsupportable irrespective of the logic or whatsoever rationalisation of aggravating factors that may be advanced in support," Sifuna ruled.
He said even though a life sentence is supposedly imprisonment for a duration of time, it is in actual sense imprisonment that is indeterminable, indefinite, uncompletable and mathematically incalculable.
Consequently, it is quantifiable only for the convict's entire remainder of his lifetime.
"It is a deceptive sentence, in that one commences it thinking that he will one day complete it and be released from prison," he added.
The Judge explained that in such a situation, the convict will only realise that it is imprisonment that can never and will never be completed or fully served.
"The more he serves it, the more it drifts a yonder beyond the horizons. Logically, after serving it for long, he stops serving it and lets the sentence serve him and remain his lifestyle for the entire remainder of lifetime!" he observed.
Sifuna stated that there is a need for the court to state in days, months or years, the term of imprisonment.
This, he said, will now make it possible for the prison authorities as well as the convict and their family to keep mathematically calculating the remaining term and ascertain the date of completion.
Poking holes into life imprisonment, the High Court Judge observed that while the date of commencement is known, the date of completion is unknown right from the moment of sentencing.
"Its duration is pegged on the unknown lifetime and unknown date of death of the convict. It is as already observed herein, an imprisonment that is uncompletable, and interrupted only by death. Such that, in my view, the death of the convict only interrupts it (an act interrupts) and extinguishes it, rather than terminates it."
Justice Sifuna issued the precedence pronouncement while deciding an appeal in a case where a man was convicted of incest and sentenced to life imprisonment.
Upon considering the matter, the Judge set the sentence aside and substituted it with 10 years imprisonment.
He ordered that Justus Ndung'u serve the sentence effective July 21, 2022, the date of the impugned sentence.