Constitutionality of Indeterminate Life Imprisonment
Recent judgments have sparked renewed debate on whether indeterminate life imprisonment violates the Constitution. This article reviews the emerging jurisprudence and argues that courts should not convert life sentences into determinate terms without a proper constitutional challenge. It warns that inconsistent substitutions risk uncertainty and uneven sentencing outcomes.
Author : Bryson Ometo
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- Rachier & Amollo LLP, Mayfair Center 5th Floor
Constitutionality of Indeterminate Life Imprisonment
Bryson Ometo
Article Overview
This insight tackles the ongoing debate on whether indeterminate life imprisonment is constitutional in Kenya. The author takes a clear position that life imprisonment remains a valid sentence, but argues that several recent court decisions have approached the issue through the wrong procedure by declaring life imprisonment unconstitutional even when parties did not plead or submit on it.
The article reviews key Court of Appeal and High Court decisions that have translated “life” into varying fixed terms (including 40 years, 30 years, and even 10 years), creating uncertainty in sentencing. It contends that this trend amounts to improper judicial law-making that violates the separation of powers, and urges that any reform should come through proper constitutional petitions, Supreme Court clarification, or legislative amendment (including a structured parole framework).
Key takeaways
- Two competing schools of thought: one argues indeterminate life imprisonment is unconstitutional; the other argues courts are exceeding their role and contravening separation of powers. The author aligns with the latter.
- Procedural critique: the article flags a pattern where courts determined constitutionality suo motu, without parties submitting on the issue, which the author views as improper.
- Conflicting outcomes create uncertainty: courts have converted “life” into different fixed terms (for example, 40 years, 30 years, or 10 years), creating confusion in sentencing practice.
- Separation of powers emphasis: the author argues statutes enjoy a presumption of constitutionality and courts should not “repair” legislation; Parliament must correct legislative gaps.
- Judicial restraint approach proposed: the article points to the Supreme Court’s approach in Muruatetu where the Court declined to determine the constitutionality of life imprisonment without full arguments from parties and interested actors.
- Reform path suggested: either (1) properly move the Supreme Court for a definitive pronouncement, or (2) have Parliament amend penal laws to introduce a parole structure after a determinate term, leaving the parole threshold to the Legislature.