Kenyan court rules presidential power to hold under-age offenders in prison indefinitely is unconstitutional, orders prisoner released at once

25 February 2022 · Carmel Rickard

A Kenyan high court has declared that rights given to the head of government to detain certain convicted prisoners ‘at the pleasure of the president’ are unconstitutional. This is because the court found these powers usurp the power of the courts. But the case was not just a theoretical exercise; it concerned a very real matter in which a prisoner, convicted of a crime that attracted the death penalty at the time, was sentenced to jail ‘at the pleasure of the president’ because he was under age. That was well over 16 years ago. Now the man, known only by his initials, ‘JMR’, can no longer be held in what amounts to indefinite imprisonment, and must be released immediately, said the court.

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Known only by his initials, JMR, the man at the centre of this case, had been virtually forgotten as he languished in prison for an indefinite term.

Then he brought a challenge to the unthinkable situation in which he found himself.

He had been convicted of robbery with violence in 2004. Under the law at that time, the crime warranted an automatic sentence of death. But he was just 17, and a sub-section of the Penal Code provided that when a convicted person was under 18 ‘the court shall sentence such person to be detained during the President’s pleasure’.

Detained

Section 25(2) of the Penal Code continues: ‘If so sentenced, he shall be liable to be detained in such place and under such conditions as the President may direct, and whilst so detained shall be deemed to be in legal custody.’

The sentencing judge is also directed to forward notes of evidence from the trial to the President, with a written and signed report and any recommendation or observations thought relevant to make.

Just what those recommendations is not indicated in this judgment on JMR’s petition, but one thing is clear: he has been in prison for 16 years and nine months. And, until this decision by high court judge, Abida Ali-Aroni, there was no end point for the sentence: it was set to continue for as long as it ‘pleased’ the President.

Death penalty

JMR’s appeal, challenging the constitutionality of indefinite sentences at the President’s ‘pleasure’, in lieu of capital punishment, came at a time when the courts are still making their way through the fallout from an important decision on the death penalty.

That decision set aside the mandatory penalty of death in cases of murder and held that judges should be able to consider the appropriate sentence to impose – whether the death penalty or not – in such cases.

However, the Supreme Court has also held that its decision affects only murder matters. Convictions for other crimes that attract the death penalty (such as in JMR’s case) must be properly filed and argued so that a decision can be reached on the constitutional questions involved.

Paramount

Judge Ali-Aroni said she had to consider whether the essence of the sentence – its indeterminate nature – was constitutional. She also had to take into account that a child’s best interests were of ‘paramount importance’ in ‘every matter’ concerning a child.

She wrote that that, via the section giving the President the power to detain a ‘convicted’ child indefinitely, the judiciary ‘unconstitutionally yields or gives away the power donated to it in the Constitution, by the people of Kenya’. That power was given to another arm, the executive, instead.

Concern about indefinite sentences had already been expressed by the court in other matters. Such sentences were also contrary to international law, and, in particular, the UN Convention on the rights of the Child, ratified by Kenya in 1990 and the African Charter on the Rights and Welfare of the Child, ratified in 2001.

Interferes

The judge said she agreed with the ‘great minds of the learned judges’ and found that the section of the Penal Code, under which JMR was being indefinitely imprisoned, violated the constitution of Kenya as well as regional and international instruments.

This was because the section ‘interferes with the separation of powers … as it requires judicial officers to cede the powers bestowed on them to another arm of government, the executive, thus interfering with the independence of the judiciary.’

‘In also violates the right of the person convicted as the sentence is indeterminate thus oppressive and … violates the right of the child in conflict with the law.’

Degrading

Further, JMR, a child at the time of conviction and sentence, was subjected to severe and degrading punishment and kept in a maximum prison despite the provisions of the Children’s Act.

These provisions listed a variety of appropriate consequences for a child who had offended, top of which was the following, under the heading, ‘Restriction on punishment’: ‘No child shall be ordered to imprisonment ….’

Extremely severe

Judge Ali-Aroni concluded that JMR’s petition had to succeed. She declared that the sections of the penal code giving the President the power to determine the sentence of someone under age, were unconstitutional.

She added that the punishment given to JMR ‘was extremely severe’ and in conflict with the constitution, given his age at the time of the offence.

She thus set aside the punishment meted out to him and ordered that he should be set free immediately unless he was ‘otherwise lawfully held.’

Carmel Rickard

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