In a recent judgment by Justice Prof (Dr) Nixon Sifuna, the High Court of Kenya decided on Justus
Ndung’u -vs- Republic, held that life imprisonment as punishment is not only archaic in this age and time
but also unreasonable and absurd. The case involved an appellant who had been sentenced to life
imprisonment. The High Court set aside the life imprisonment and substituted it with ten (10) years
imprisonment. In arriving at the determination, the learned Judge reasoned that any punishment ought to
be certain and predictable, which life imprisonment is not. The court reiterated that every person has the
right to dignity in accordance with Article 28 of the Constitution of Kenya (2010).
This begs the following question — does life imprisonment deny a person the right to human dignity?
Does the alienation of one’s remainder of their lifetime, away from social ties, deny one this fundamental
human right? Do the deplorable living conditions synonymous with our correctional facilities lead to the
inescapable conclusion that life imprisonment deprives one of human dignity? What is human dignity in
the first place?
In any criminal case, stakeholders are other than the state (through the judge). Let us take a
moment and consider the other stakeholders.
- The victim of the offense and/or the family of the victim
Does condemning another human being to live the remainder of their life in confinement fill, in any
way, the void left by the loss and damage occasioned by the act (or omission) of the guilty party?
Retribution, you may say, is an eye for an eye! If this be the case, in the words of Mahatma K. Gandhi,
won’t the whole world go blind soon? - The guilty party
Now that the victim has suffered loss and damage occasioned by the act (or omission) of the guilty
party, how does condemning the guilty party to live the remainder of their life in confinement benefit
the victim? Retribution, again I hear you say. Retribution towards what end? Was it not stated by
Benjamin Rush, two wrongs don’t right a wrong? What about the family (or dependents) of the guilty
party? It has been voiced in some quarters that life imprisonment punishes the dependents more than
it does the guilty party. - The Society
The drafters of our laws hoped that in meting out life imprisonment, other members of the society
would learn from the guilty party, and desist from actions (or omissions) that may land them in a
predicament equal to or worse than the predicament that befalls a guilty party sentenced to life
imprisonment. The following offenses currently are punishable by life imprisonment – murder, robbery
with violence, treason, amongst others. Have we witnessed decreased rates of these crimes because
of the deterrent nature of life imprisonment?
Does it make sense to condemn a human being to live the remainder of their life in confinement such that
their only escape from such is death, all other factors held constant? Is it time the Court of Appeal as well
as the Supreme Court add their voice to this discourse? Is time for our legislators to amend the law on life
imprisonment with a more humane sentence?