By nyambane N.
Imprisonment at the President’s pleasure refers to detention in prison for an indefinite length of time. The length of such detention depends on the inmate’s conduct, and imprisonment terminates when the reviewing body reports to the Office of the President that there has been a significant change in the offender’s attitude and behaviour. This means that ‘imprisonment at the President’s pleasure’ can be very short, or it can be a life sentence if no decision is made after sentencing to end the term.
Traditionally, the practice applies to minors and lunatics. Imprisonment at the President’s pleasure must not be confused with the President’s exercise of the power of mercy under Article 133 of the Constitution. Power of mercy entails the grant of pardon, respite, substituting a less severe form of punishment and remission. Such powers are exercised by the President in accordance with the advice of the advisory committee established under Article 133(2) of the Constitution.
Absurd as it may seem, the practice of leaving a convict’s fate in the hands of the Office of the President still exists in our law books, anchored in Section 25(2) of the Penal Code and Section 166 of the Criminal Procedure Code. But in Kenya, like in many other jurisdictions, this law has long been the subject of contention for reasons we shall see shortly. Recent decisions from the superior courts offer a glimmer of hope that soon, imprisonment at the president’s pleasure shall be a bygone.
In the case of ‘AOO & 6 Others v Attorney General and Another (2017) eKLR’, the petitioners, after conviction, were sentenced to imprisonment at the President’s pleasure. At the time of their conviction they were aged between 12 and 17 years. At the time of filing the petition, they had been imprisoned for periods ranging from 13 to 22 years, and they continued to serve their jail terms at the President’s pleasure. The petitioners argued that to serve imprisonment at the President’s pleasure is to be imprisoned for an undefined period of time which, they contended, is contrary to among other laws, Article 53(1) (f) of the Constitution. That provision provides “every child has the right not to be detained except as a measure of last resort, and when detained, to be held for the shortest appropriate period of time; and separate from adults and in conditions that take account of the child’s sex and age.”
The presiding judge, Justice John Mativo, in rendering his verdict, began by observing that sentencing of children is a constitutional matter of great concern, and children’s rights are of the utmost importance in our society.
The judge held that imprisonment at the President’s pleasure is a discretionary sentence and cannot be said to be for the shortest time appropriate because it is left at the discretion of the Executive and can easily translate into a life sentence.
“I find that Section 25(2) of the Penal Code is inconsistent with the provisions of Article 53(1) (f) of the Constitution, which provides that a child has the right not to be detained except as a measure of last resort, and when held, to be held for the shortest appropriate period of time and separate from adults and in conditions take account of the child’s sex and age,” Justice Mativo said.
Next the court considered whether Imprisonment at the President’s pleasure offends Article 160 (1) of the Constitution. That provision speaks to the independence of the Judiciary and provides, “In the exercise of judicial authority, the Judiciary shall be subject only to the Constitution and the law and shall not be subject to the control or direction of any person or authority.”
Here, the court was guided by the English case of ‘Reg v Secretary of State for the Home Department Ex Parte Venables and Thompson’ and the words of Lord Diplock where he stated, “What parliament cannot do, consistently with the separation of powers, is to transfer from the judiciary to any executive body…a discretion to determine the severity of the punishment to be inflicted upon an individual member of a class of offenders.”
The court was also guided by the recent case of ‘R v Secretary of State for the Home Department Ex Parte Anderson’ where the House of Lords held that sentencing powers are to lie with the courts and not the crown. In this case Lord Bingham observed that (1) the accused has a constitutional right to a fair trial by an independent and impartial tribunal, and the Executive is not an independent and impartial tribunal or court; and (2) imposition of the sentence is part of the trial. Therefore, the sentence should be imposed by an independent and impartial tribunal.
Justice Mativo opined that the imposition of a punishment in a criminal matter which includes assessment of its severity is an integral part of the administration of justice and is therefore the exercise of judicial, not executive, power.
It was the court’s finding that imprisonment at the President’s pleasure violates not only the Constitution, but also the Children’s Act. This is due to the doctrine of “implied repeal”. Since the Children’s Act came into force in 2002 and the Penal Code 1930, provisions of the later Act that are irreconcilably inconsistent with the earlier Act stand impliedly repealed by the latter Act.
The court held that provisions of Section 25(2) of the Penal Code cannot stand together with provisions of the Children’s Act, which safeguard the rights and welfare children.
Based on the above findings, the court declared Section 25(2) of the Penal Code unconstitutional, and directed the Attorney General and Parliament to enact the necessary amendments to ensure the offending provisions conform to the Constitution.
In the more recent case of ‘Republic v SOM (2018) eKLR’, the accused was convicted of the murder of his grandmother. The High Court at Kisumu found that he committed the act of killing, but was insane at the time.
In accordance with Section 166 of the Criminal Procedure Code, the court was, by law, required to direct that the accused be kept in custody pending the President’s order.
The defence protested the imminent sentence. Counsel for the accused argued that since the mandatory death sentence has been declared unconstitutional by the Supreme Court, the sentence imposed by section 166 of the Criminal Procedure Code must also be unconstitutional, as it is mandatory in nature. Judicial power of sentencing must not be interfered with, he asserted.
Justice Majanja concurred and observed that even though the Supreme Court decision dealt with the death sentence, the principles it espoused were nonetheless applicable to the present case.
“The vesting of discretion on the President on how the accused is to be treated after conviction is inimical to the fundamental duty of the Judiciary to determine the guilt of the accused and determine the terms upon which he or she serves the sentence. I therefore find and hold that the provisions of Section 166 of the Criminal Procedure Code are unconstitutional to the extent that they take away the judicial function to determine the nature of the sentence contrary to Article 160 of the Constitution by vesting the discretionary power in the Executive. It also violates the right to a fair trial protected under Article 25 of the Constitution,” the judge said.
On the strength of these findings, the court directed that the accused be committed to a mental institution subject to periodic review by the court (instead of the President).
The court went a step further to propose that in order to remedy the Constitutional defect, the reference to ‘the President’ under Section 166 of the Criminal Procedure Code should be substituted for ‘the court’. (