In defence of hope: Kenyan Court’s ruling reignites the debate on (Un)constitutionality of life imprisonment without remission

Emerging academic discourse is beginning to acknowledge a 'right to hope' as a foundational principle inherent in the 'right to life'. As the Supreme Court of India grapples with the issue, it is time India takes a liberal stance on it, writes Aparna Bhatnagar.

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"Leaving behind nights of terror and fear

I rise

Into a daybreak that's wondrously clear

I rise

Bringing the gifts that my ancestors gave,

I am the dream and the hope of the slave.

I rise

I rise

I rise."

MAYA Angelou penned this stirring verse, capturing the essence of hope in 1978. To this day, it remains a rallying cry for protest, rebellion, and above all, resilience.

Half a century later, on March 19, 2024 the Kenyan High Court ruled that sentencing individuals to life imprisonment without the possibility of remission is unconstitutional.

Justice Nixon Sifuna, in a succinct and pointed verdict, framed this violation within the constitutionally enshrined 'right to dignity' as articulated in Article 28.

While the ruling invited a critique, it has also sparked a renewed discourse on the significance of rehabilitation and redemption as a fundamental tenet within the criminal justice system.

In this article, I argue that all persons, no matter how abhorrent their actions, retain the potential for transformation and a capability for atonement. To withhold from them the 'right to hope' is to strip away a fundamental element of their humanity, and is thus violative of the very idea of justice.

Rising penal populism and the punitive turn in 21st century: Is life imprisonment a better alternative than death penalty?

Over the past few decades, criminologists have documented a noticeable punitive turn in Anglo-American penal policies, attributing this shift to broader socio-economic changes.

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Across the globe, 'penal populism' has played a significant role in shaping sentencing policy, marked by harsher laws, stricter law enforcement and swelling prison populations.

A notable aspect of this trend is the increasing prevalence of life imprisonment as an alternative to capital punishment. Prominent instances include Kazakhstan and Burkina Faso, where courts have opted to commute death sentences to life imprisonment in recent years.

Legislative reforms in countries such as Poland and Serbia have introduced provisions for life imprisonment without the possibility of remission, reflecting a tougher stance on criminal justice.

Similarly, Nicaragua has witnessed an expansion of maximum sentences, with the duration of imprisonment increased to life for certain offences.

However, pioneering scholarship has shone a light on the human rights implications of life sentences. The harsh conditions often endured by individuals serving life sentences, such as denial of access to rehabilitation programs in many countries, prolonged solitary confinement and frequent use of restraints such as handcuffs, obstruct one of the key aims of imprisonment: rehabilitation, as outlined in the United Nations Nelson Mandela Rules.

Specifically, life imprisonment without the possibility of remission raises concerns of cruel, inhuman and degrading treatment, stripping away any hope of release and rendering the rehabilitative aspect of imprisonment essentially futile.

This approach to sentencing policy is symptomatic of a shift away from a reform-oriented understanding of punishment, towards the realm of pure retribution.

'The thing with feathers': The Emergence of a right to hope

The imposition of life imprisonment without the possibility of remission has historically been subject to critique, particularly concerning principles of human dignity, proportionality and the right to rehabilitation.

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However, emerging academic discourse is beginning to acknowledge a burgeoning 'right to hope' as a foundational principle inherent in the 'right to life'. In the European Union, one of the first cases dealing with the principle of reducibility of life imprisonment was Vinter and Others versus UK (2013), which dealt with the compatibility of whole life sentences given to individuals for murder as violative of under Article 3 of the European Convention on Human Rights (ECHR).

In her concurring opinion, Judge Power Forde held, "Long and deserved though their prison sentences may be, they retain the right to hope that, someday, they may have atoned for the wrongs which they have committed. They ought not to be deprived entirely of such hope. To deny them the experience of hope would be to deny a fundamental aspect of their humanity and, to do that, would be degrading."

The judgment highlighted a subtle yet profound point on atonement and human dignity, particularly within the framework of rehabilitation and the passage of time.

In 2023, the Kenyan Court of Appeals delivered a pivotal verdict in the case of Julius Kitsao Manyeso versus Republic, affirming that mandatory life imprisonment without the potential for mitigation constitutes 'inhumane treatment' under Article 28, thus rendering it unconstitutional.

Drawing from the precedent set in the Vinter case, the court highlighted the infringement upon the right to dignity and condemned such sentencing as discriminatory and incompatible with the principle of equality before the law, as enshrined in Article 27 of the country's constitution.

Additionally, the court invoked the Kenyan Supreme Court's decision in Francis Karioko Muruatetu & another versus Republic to underscore the multifaceted purpose of incarceration, emphasising not only retribution but also the imperative of rehabilitation.

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This resonates with the principle articulated in Paragraph 3 of Article 10 of the ICCPR, emphasising the essential goal of reformation and social reintegration within the penitentiary framework. Consequently, life imprisonment without the possibility of remission runs counter to both domestic principles of dignity and autonomy, as well as established international human rights standards.

Concluding remarks: Towards adopting a 'hope-standard' in criminal justice

On February 9, 2024, the Indian Supreme Court agreed to hear a petition on whether the interpretation of 'life sentence' implies incarceration for the entirety of one's natural life or if it can be subject to commutation or remission under Section 432 of the Code of Criminal Procedure (CrPC).

The plea argues that interpreting life imprisonment as confinement until natural death violates the fundamental rights of the convicted individual and that imposing such a sentence is unconstitutional as it contradicts the remission policies and rules set by state governments.

As India deliberates its approach to life imprisonment without the possibility of remission, it must uphold its commitment to a reforms-based approach to criminal justice, and acknowledge the inherent redundancy of such punishments within this framework.

Jennifer Lackey, a distinguished philosophy professor at Northwestern University, argues that life convicts harbour the potential for profound behavioural and psychological transformations, often marking a stark contrast between their past and future selves.

Furthermore, the potential for change extends beyond the prisoners. Victims and their families may come to view the convicted as deserving of forgiveness and redemption, and public attitudes may shift from a fervent 'war on crime' stance to one recognising criminal behaviour as symptomatic of broader societal issues warranting reform.

As the discourse on criminal justice reform gains momentum globally, the case of Justus Ndung'u Ndung'u versus Republic serves as a poignant reminder of the inherent dignity and worth of every individual, even those convicted of the most egregious crimes.

Our inability to predict future outcomes does not confer upon us the authority to prescribe the trajectory of a prisoner's life for years to come. Rationality demands that we cast aside these fears and work towards the realisation of a 'right to hope'.