Judge says life, death sentences two sides of the same coin

High Court judge Nixon Sifuna has joined judicial voices seeking a change in sentencing persons to indefinite jail terms.

Prof Sifuna, in his judgment in an incest case, argues that life sentence is unconstitutional for being unclear when one should leave.

Court of Appeal judges Pauline Nyamweya, Jessie Lesiit and George Odunga, Justice Sifuna had also ruled that life sentence is equal to death sentence as freedom is guaranteed only by dying.

According to Sifuna, the purpose of a sentence cannot be achieved as one may either die a day after sentence or live until late in their life.

Sifuna is of the view that it is impossible to complete a life sentence unless death interrupts it.

"The death sentence and a life sentence are the two sides of the same coin in terms of their severity and permanence. Save that one is a terminal one, while the other is not. One of the common denominators in the two is that once sentenced, the convict is permanently deleted from society and will never return into it, except through perhaps a stealthily escape or daring dash in a prison break such as happened recently in Haiti. Which action is criminalised and is a punishable offence," he argued.

In the case, Justice Sifuna ordered a man code-named JNN to serve 10 years in jail. The man was accused of defiling his 10-year-old daughter in Murang'a in 2017 and was sentenced to life. Aggrieved, JNN filed an appeal challenging the conviction and the sentence.

Sifuna is not a lone voice in the growing number of judicial calls for change of the Penal Code. It is the fourth time that the court is finding that life sentence is unconstitutional and lacks dignity.

The first case to call for change on how courts were sentencing capital offenders and those convicted of defilement was by judges Nyamweya, Lesiit and Odunga.

The three agreed that it is unfair to outlaw mandatory death sentences only to order a person to remain behind bars until they die.

According to the judges, the purpose of jailing a person is to either deter, rehabilitate, denounce or retribute for the offence committed. They asserted that a life sentence should not mean the natural life of a prisoner.

"We are equally guided by this holding by the Supreme Court of Kenya, and in the instant appeal, we are of the view that having found the sentence of life imprisonment to be unconstitutional, we have the discretion to interfere with the said sentence," ruled the Bench headed by Justice Nyamweya.

The judges were determining an appeal filed by Julius Kistao against the State. Kitsao was charged with defiling a four-year-old. The magistrate's court handed him a life sentence.

He appealed before the High Court, but Justice Reuben Nyakundi dismissed his case. He then moved to the Court of Appeal, where the judges directed that he instead serves 40 years.

Kenya no longer hangs those who are convicted of murder, robbery with violence and treason. Instead, their sentences are commuted to life.

On the other hand, the Sexual Offences Act provides that a person convicted of defiling a minor aged between 12 and 15 should be jailed for more than 20 years.

Those convicted of sexually molesting children aged between 16 and 18 should get 15 years minimum, while those who defile children aged below 11 get a mandatory life sentence.

In a separate case, justices Hannah Okwengu, Hellen Omondi and Joel Ngugi were unanimous that life imprisonment is cruel and degrading. They suggested that one should be handed 30 years maximum.

"On our part, considering this comparative jurisprudence and the prevailing socio-economic conditions in Kenya, we come to the considered conclusion that life imprisonment in Kenya does not mean the natural life of the convict," argued the Bench headed by Justice Okwengu.

While determining an appeal by Evans Nyamari, who had been jailed for defiling a six-year-old, the judges observed that there in concurrence in Africa and Europe that a prisoner deserves a second chance.

In Africa, they singled out Zimbambwe and South Africa.