This is the kind of judgment that makes a reader feel slightly ill. It is short and to the point, but discloses a sad state of affairs.
Thomas Odede was just 12 when he was arrested for murder. That was in 1998. Just think of it – not yet even a teenager, but already in the criminal justice system with a potentially life-long sentence, if not worse – hanging over his heard.
From the sound of it, the courts of Kenya, like many others, did not then have the same attitude to young offenders as they do now. Readers of the current judgment are given no inkling of the details of the case, but in 2001, when he was about 15, Odede was eventually tried and then convicted. Because of his age, he was ‘ordered to be detained at the President’s pleasure’.
Fast forward 19 years, and Odede is still sitting in prison, not knowing what length of sentence he is actually to serve. Finally, the open-ended nature of his imprisonment became too much and in November 2019 he petitioned the high court for resentencing ‘on the main ground that the sentence imposed on him is unconstitutional’.
Counsel for the state did not oppose Odede’s application for ‘resentence’, proposing that he be sentenced to 20 years in prison.
Judge Thripsisa Cherere said that when a court resentenced an accused, it was entitled to take into account how long the person had already spent in custody.
What should she consider in Odede’s petition? ‘The court record shows that the Petitioner was charged in 1998 and was convicted three years later, in 2001. He has served 19 years within which time he has obtained three certificates in Bible Studies (and) attained Grade 1 certificate as a tailor. The officer in charge (of) Naivasha Maximum Prison has (in) his letter … vouched for (Odede’s) good conduct.’
The judge added that Odede ‘who was 12 years at the time of the arrest and 15 years at the time of his conviction, is now 34 years. He has lived more than half of his life in prison.’
She concluded that in her view Odede ‘has the potential for productive life outside prison.’
‘I therefore re-sentence him to the period already served.’
- Readers might have noticed that Odede, who was a child both at the time he committed his offence and when he was tried and sentenced was, 19 years later, behind the bars of the notorious Naivasha Maximum Security Prison. The Children’s Act came into force in 2001, but by then Odede was already serving an indeterminate sentence. The new constitution of 2010 was also too late for children like Odede. But despite many reforms introduced since he was arrested and tried, the present system is still regarded as inadequate for the protection of children, and in need of reform itself.