High Court judges have argued that allowing the President to determine sentencing will interfere with judicial independence, and that serving an undefined period of time violates the rights of the accused.
Justice John Mativo said the Constitution requires effective separation of powers between the courts and other arms of government. Further, imposition of a punishment in a criminal matter, which includes the assessment of its severity, is an integral part of the administration of justice and is, therefore, the exercise of judicial power and not executive.
Review of imposed sentences is a judicial function to be performed by the High Court, Court of Appeal and Supreme Court.
While declaring the law unconstitutional in as far as it relates to the sentencing of children in conflict with the law, Justice Mativo said: “I find that section 25(2) of the Penal Code is inconsistent with the provisions of Article 53 (1) (f) of the Constitution which provides that a child has the right not to be detained, except as a measure of last resort, and when held, to be held for the shortest appropriate period of time and separate from adults and in conditions that take account of the child’s sex and age.”
The matter before the judge was filed by petitioners who were charged and convicted in various courts in the country and sentenced to be detained at the president’s pleasure. At the time of their conviction, they were aged between 12 and 17 years.
As at the time of filing the petition, on December 18, 2015, they had been in prison for between nine and 22 years, and all of them continued to serve their terms at the President's pleasure.
“I do not think that such periods of time can qualify to be described as the shortest appropriate period of time" envisaged in the Constitution and international conventions nor has the State demonstrated that their continued detention is necessary.
The fundamental duty of the court is to do justice,” said Justice Mativo on May 12, 2017, when he also ordered their immediate release.
He said any punishment that cannot be determined from the outset is cruel, inhuman and degrading, hence unconstitutional.
While confronting the same law as it relates to mentally challenged persons detained “at the President’s pleasure,” Justice Kiarie Waweru Kiarie said that a sick person's place is in the hospital and not in prison.
“I find section 167 of the CPC (Criminal Procedure Code) discriminative to people with mental illness for prescribing their detention to be in prison instead of a health facility and for the detention to be indeterminate. This offends articles 25 and 29 (f) of the Constitution,” said Justice Waweru in his May 10, 2016 judgment.
Article 25 provides: “ … The following rights and fundamental freedoms shall not be limited — (a) freedom from torture and cruel, inhuman or degrading treatment or punishment."
“It is my opinion that keeping a sick person for an indeterminate period in a prison is cruel, inhuman and degrading treatment,” said Justice Waweru, while setting aside the order to detain a mad man who had entered a mosque and stolen four Korans valued at Sh2,000.
Further, Article 29 (f) of the Constitution provides: “Every person has the right to freedom and security of the person, which includes the right not to be — (f) treated or punished in a cruel, inhuman or degrading manner."
He said the order envisaged under section 167 (1) of the CPC is a punishment. Any punishment that cannot be determined from the onset is cruel, inhuman and degrading.
“I therefore make a finding that this section is unconstitutional to the extent it offends the said articles of the Constitution,” Justice Waweru said.
Justice Alfred Mabeya on November 9, 2017, said the appellant having been mentally sick when he committed the offence, “his position can be equated to that of a child under the age of 18 years
And on April 30, 2018, Justice David Majanja declared that in order to remedy the constitutional defect, the reference to “the President” under section 166 of the Criminal Procedure Code and the review carried out under that section shall be by the court.
He said the effect of this is to ensure that the accused is brought before the court periodically so that the court may review the matter and if necessary call for and take necessary expert and other evidence before making an appropriate order within the framework of a definite period of detention imposed by the court.