Prisons are soon likely to be emptied of hundreds of convicts who were jailed indefinitely while awaiting presidential amnesty because they were below 18 years of age when they committed offences.
Incredibly, some of them have languished behind bars for more than 20 years without the likelihood of release.
However, the High Court yesterday came to their rescue by nullifying indefinite imprisonment of juveniles and unlawfully holding them in prisons at the mercy of the President.
Justice John Mativo drove the point home by ordering the release of six prisoners who were convicted in various courts and sentenced to be detained pending presidential pardon when they were aged between 12 and 17 years.
The beneficiaries are Joseph Karatu Mugo, who has been in prison for eight years, Benson Njihia and Stephen Irungu Mungai (14 years), Nzioka Kitili Mwongoi (15 years), Jackson Nyakundi (22 years) and Thomas Owino Ondeny (23 years).
The court ruled that children’s detention at the President’s pleasure is unlawful for abdicating judicial discretion to the Executive and violates the doctrine of separation of powers among the three arms of government.
In a landmark decision, Justice Mativo declared Section 25 (2) and (3) of the Penal Code-which allows incarceration of minors awaiting presidential pardon-violated Articles 53 and 160 of the Constitution and international conventions governing the rights of children.
“I find that Section 25 (2) of the Constitution 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 to be held at the shortest appropriate period separate from adults and in conditions that take account of the child’s sex and age,” Justice Mativo reasoned in his 22-page judgment delivered on Friday.
Under the law, convicted minors cannot be punished by death or detained indefinitely in prison at the mercy of the President, he said.
Juvenile offenders should be separated from adult prisoners and their detention in borstal institutions should be a last resort and for the shortest period possible, the court reiterated.
In a landmark decision, Justice Mativo said the sentence of imprisonment at the President’s pleasure is abdicating judicial discretion to the Executive and can easily translate into a life sentence.
“To sentence a person to what may potentially constitute life imprisonment infringes on the rights of such a person not to be subjected to cruel, inhuman or degrading punishment,” he said.
“I must emphasise that children’s rights are of utmost importance in our society. Courts are required to distinguish between children and adult offenders when sentencing and children must enjoy preferential sentencing treatment, Justice Mativo observed in his 22-page judgment.
“All that the Constitution requires is that children be treated as children; with care, compassion, empathy and understanding of their vulnerability and inherent frailties. Even when they are in conflict with the law, the hand of the law cannot be permitted to fall hard on them like a sledge-hammer lest it destroys them. The Constitution demands that the criminal justice system be child-sensitive,” Justice Mativo pointed out.
