Hope for inmates serving life as team sets out to define life sentence

Peter Ouko, a former death row convict, says that there is nothing more dehumanising than spending years in prison not knowing whether you will ever walk out to freedom. 

Ouko, who was sentenced to death for killing his wife, spent 18 years on death row, but the sentence was commuted to life imprisonment by President Mwai Kibaki in 2003 under the prerogative of mercy.

He was one of 3,000 prisoners to remain behind bars for life.  

However, his good behaviour finally earned him his freedom in 2016.

READ: The Supreme Court almost killed the death penalty

FAIRNESS

Now a lawyer, Ouko says it is wrong to prescribe the same sentence to all capital offenders.

“Even a doctor does not prescribe the same drug and dosage for all patients. One dose might last a week, another two weeks, and yet another even longer,” he says. 

Ouko, who has been invited to give a talk at the 3rd African Regional Congress Against the Death Penalty in Abidjan, Ivory Coast, next week, says that many cases of indiscipline in prisons result from frustration because the inmates never know whether they will ever walk out of prison.

"But with the formation of the Power of Mercy Advisory Committee, 'there is hope."'  

Similarly, Francis Karioko Muruatetu and Wilson Thirimbu Mwangi, who were found guilty of killing a Nairobi businessman and land dealer, Mr Lawrence Githinji Magondu, in 2000, never gave up after being sentenced to death.  

APPEAL
Their first appeal was rejected by the appellate court, but they moved to the Supreme Court and finally convinced the judges that the mandatory death sentence is unconstitutional.  

But before their appeal was heard, their sentences were reduced to life imprisonment.

READ: What Supreme Court ruling on death sentence means

Still determined that each murder convict should be treated differently, the two asked the Supreme Court to define what constitutes life imprisonment.

The Supreme Court subsequently referred them back to the High Court for re-sentencing after they argued that denying them a chance to mitigate was illegal. 

Things are now about to change after the Attorney-General named a 13-member task force to gather views from Kenyans on life sentencing, among other issues.  

READ: AG appoints team to review death penalty

SENTENCES
The task force will define life imprisonment, and whether Parliament should come up with minimum and maximum sentences for capital offences. 

In Kenya, it is assumed that the life sentence means the duration of the prisoner’s natural life.

However, many have argued that this is punitive and defeats the whole purpose of sending prisoners to jail, namely reforming them.

Keeping them in jail until they die is also expensive, given that the State spends Sh250 on a prisoner’s food alone daily.  

Lawyers suggest that Parliament should come up with minimum and maximum sentences for serious offences such as murder, robbery with violence and attempted robbery with violence, which afford a prisoner a chance for conditional release.  

PRESIDENTIAL PARDON
As the law stands, those serving life imprisonment or detention are released after some years under the president’s prerogative of mercy.

There is a review board that revisits the sentences and advises the President.  

Last year, the Supreme Court declined an invitation by Muruatetu and Mwangi to define a life sentence.

Instead, the six judges directed the Attorney-General and Parliament to begin enquiries and come up with legislation defining a life sentence. 

The judges, led by Chief Justice David Maraga, said this might include a minimum number of years to be served before a prisoner is considered for parole or review, or the provision for prisoners under specific circumstances to serve until death. 

TRIAL JUDGE
Lawyer John Swaka agrees, saying Parliament should come up with a minimum number of years to be served by a prisoner, but asserts that MPs should still leave it to the discretion of the trial judge.

“It is the Judge who should consider the circumstances and manner in which the offence was committed.

"The trial judge should also consider the mitigation and whether the convict is remorseful or not,” he says.  

At the Supreme Court, Muruatetu and Mwangi wanted the court to determine whether the “indeterminate” or “indefinite” life sentence is unconstitutional, and whether the court should fix the duration of imprisonment, subject to review rules. 

The judges ruled that murders differ greatly, so it is wrong to prescribe the same punishment for all murderers. 

OFFENCES
In South Africa, the law provides minimum sentences for a few serious offences, including murder, rape, robbery and serious economic crimes.

The least severe mandatory sentence is 15 years’ imprisonment, which rises to 20 or 25 years for offenders with previous convictions for the same offence. 

Under Kenya’s Penal Code, offences such as treason (Section 40); oathing to commit a capital offence (Section 60); murder (Section 204); robbery with violence (Section 296(2) and attempted robbery with violence (Section 297(2), attract the death penalty.  

During the hearing of the appeal by Muruatetu and Mwangi at the Supreme Court last December, Attorney-General Githu Muigai said that a life sentence should not to be equated to the natural life of a convict, and that a judge should be given the opportunity to set a date when parole might be considered.
“As to what amounts to life imprisonment, that is a matter for the legislative branch of government.

"It is not for the courts to determine for the people what should be a sufficient term of years for a person who has committed an offence that society finds reprehensible to serve,” the judges said. 

PAROLE
They noted that a life sentence should not necessarily mean the natural life of the prisoner; it could also mean a certain minimum or maximum period to be set by the relevant judicial officer in line with established parameters of criminal responsibility, retribution, rehabilitation and recidivism (repeating the same crime).

Lawyer Waikwa Maina supported the idea, adding that even after the parameters have been established, the trial judge should be allowed to make the final decision, so that the principle of separation of powers is adhered to. 

However, another lawyer, James Mwamu, said the solution lay in strengthening the Committee on the Prerogative of Mercy which, he said, should periodically review the sentences of serving prisoners and recommend to the President those to be paroled.

“Opening it to interpretation or setting minimum sentences make it lose meaning,” he said.  

MITIGATION
The 13-member task force will, among other things, review the legislative framework of the death penalty within 12 months.

Apart from the legislative framework, the task force, chaired by Maryann Njau-Kimani, Secretary for Justice at the AGs office, will establish a framework to deal with the re-sentencing of persons on death row, as directed by the Supreme Court in December last year

In a landmark judgment, six judges of the Supreme Court found that the mandatory nature of the death sentence, as provided for under Section 204 of the Penal Code, is unconstitutional.

Justice Maraga, his deputy Justice Philomena Mwilu, Justices Jackton Ojwang’, Smokin Wanjala, Njoki Ndung’u and Isaac Lenaola, said a person facing the death sentence deserves to be heard in mitigation because of the finality of the sentence.

They said that during mitigation, the offender’s version of events might evoke pity, necessitating the court to consider an aspect that might have been unclear during the trial.

They said that mitigation might “call for pity more than censure or on the converse, impose the death sentence, if mitigation reveals an untold degree of brutality and callousness”.