Assessing Proportionality in Justus Ndung’U: The Problem of Human Dignity in Life Imprisonment

*Saksham Agrawal

Introduction

In the landmark case of Justus Ndung’u Ndung’u v. Republic, the High Court of Kenya declared life imprisonment unconstitutional on the grounds that it violates the right to human dignity as enshrined in Article 28 of the Kenyan Constitution. Although welcomed, the judgement also invited a lot of criticism. The judgement lacked a proper legal analysis of whether life imprisonment itself is unconstitutional, instead, the reasoning given by Justice Sifuna seemed to focus more on the facts of the case and ‘dehumanisation’ in the context of the right to dignity.

To conduct a detailed legal analysis of the dignity question in Justus Ndung’u, we need to delve into the principles of human dignity as protected under Article 28 of the Kenyan Constitution. To this end in this blog, first, the author will explore how life imprisonment, as characterised by its indefiniteness, may violate these principles.  Secondly, the author will also look at international comparative perspectives on the violation of human dignity by life imprisonment. Then, the author seeks to address the substantive dimensions of the judgement using the proportionality test to determine the unconstitutionality of life imprisonment under legal jurisprudence. The focus herein is merely on the substantive element of the constitutional challenge and the procedural aspects of the constitutional challenge are not dealt with. 

Article 28 of the Kenyan Constitution: Exploring the Right to Dignity 

Article 28 of the Kenyan Constitution states: “Every person has inherent dignity and the right to have that dignity respected and protected.”

This article establishes human dignity as a core value in Kenyan law. It implies that individuals should be treated with respect and as autonomous beings capable of making choices, and it underpins all other human rights. Human dignity encompasses several critical elements: autonomy, respect, and inherent worth. 

Life imprisonment is characterised by its indefinite nature, lasting until the convict’s death. It deprives individuals of this fundamental aspect of autonomy. Unlike finite sentences, life imprisonment does not provide a clear endpoint, leaving the convict in a perpetual state of uncertainty. This prolonged deprivation undermines their ability to make autonomous choices and hope for eventual release, thus eroding a crucial component of human dignity. Life imprisonment also raises significant concerns about respect for human dignity. By confining individuals for life without the possibility of release, the state effectively dehumanises them. Life imprisonment treats convicts as perpetual threats, assuming they are beyond rehabilitation, in direct violation of the United Nations Nelson Mandela Rules. This stance reduces them to mere instruments for societal safety rather than recognising their capacity for change and personal growth. Such treatment devalues their inherent worth and potential, violating the respect that is due to every individual.

Justice Sifuna’s comparison of life imprisonment to the death penalty highlights important similarities and distinctions. Both sentences impose a form of finality: the death penalty conclusively ends life, while life imprisonment indefinitely prolongs the deprivation of liberty. This indefinite nature of life imprisonment introduces a prolonged uncertainty that can exacerbate psychological suffering, akin to the mental anguish associated with death row. However, a critical distinction remains. The death penalty, by ending life, can be seen as a more definitive, albeit more extreme, form of punishment. Life imprisonment, on the other hand, perpetuates a state of perpetual uncertainty, which can be considered a form of mental torture.

Therefore, the author concludes that life imprisonment’s indefinite nature violates Article 28 of the Kenyan Constitution by eroding human dignity. It deprives convicts of autonomy, disregards their potential for rehabilitation, and subjects them to perpetual uncertainty. This treatment dehumanises individuals, undermining their inherent worth and violating their constitutional right to dignity and respect.

International Comparative Perspectives: A Right to Dignity 

Last year, the Kenyan Court of Appeals declared mandatory life imprisonment without the possibility of mitigation as “inhumane treatment” under Article 28, thus rendering it unconstitutional. It cited Vinter and Others v The United Kingdom, focusing on the violation of the right to dignity and deemed such sentencing discriminatory and incompatible with the principle of equality before the law, as outlined in Article 27 of the Kenyan Constitution.

In Vinter, the Grand Chamber of the European Court of Human Rights observed that “…it would be incompatible with the provision on human dignity in the Basic Law for the State to deprive a person of his freedom without at least providing him with the chance to someday regain that freedom.” 

Vinter, in turn, drew inspiration from the landmark decision of the German Federal Constitutional Court in the Lifelong Imprisonment Case where the Court held that denying the possibility of release to a person serving a life sentence would violate the human dignity clause in Article 1 of the Basic Law. According to German law, life sentences must include the possibility of release, acknowledging the potential for human rehabilitation and change. The Court ruled that every person, regardless of their crimes, must be given the opportunity for rehabilitation and the chance to regain their freedom if they demonstrate genuine change. This case established human dignity as a fundamental principle, necessitating a focus on the rehabilitative purpose of imprisonment. 

At the heart of this reasoning, lies a profound understanding of human dignity. This interpretation resonates deeply with the intrinsic belief that every individual, regardless of their past, retains an inherent capacity for growth and change. It emphasises that the justice system should not only punish but also offer the possibility of redemption and personal evolution. By upholding this principle, the Grand Chamber and the German Constitutional Court underscore a commitment to treating individuals as autonomous beings, capable of reform and worthy of dignity.

Canada’s legal framework similarly recognises the importance of parole eligibility in the context of life imprisonment, reflecting a commitment to human dignity. In R v. Latimer, the Supreme Court of Canada dealt with the mandatory life sentence with no parole eligibility for 10 years imposed on a man convicted of second-degree murder for the mercy killing of his severely disabled daughter. While upholding the conviction, the Court emphasised the need for a sentencing regime that respects human dignity by allowing for parole eligibility. The Court acknowledged that without the possibility of parole, life imprisonment could be disproportionately harsh and fail to respect the dignity of the convicted individual by not allowing for the possibility of reformation and reintegration into society.

South Africa’s constitutional commitment to human dignity influences its approach to life imprisonment, emphasising the need for humane treatment and the possibility of release. The Constitutional Court of South Africa in S v. Dodo dealt with the issue of mandatory minimum sentences. The Court held that such sentences, which effectively preclude any individualised consideration of the offender and the circumstances of the offence, could violate human dignity. The judgment emphasised that any punishment must respect the dignity of the individual by allowing for the possibility of rehabilitation and eventual release, arguing that excessive sentences that offer no hope of release are inherently dehumanising.

The High Court’s judgement is in line with not only the Kenyan Court of Appeals' ruling on mandatory life imprisonment but also aligns with international jurisprudence. The Vinter case, the Lifelong Imprisonment Case, and decisions in Canada and South Africa underscore the global consensus that life sentences must allow for rehabilitation and the possibility of release to respect human dignity and the principles of equality and justice.

The Question of Proportionality

In constitutional jurisprudence, the proportionality test serves as an essential tool for determining whether a law or policy is unconstitutional. This test is vital because it ensures that any limitation on constitutional rights is justified, reasonable, and balanced against the law’s objectives. Justus Ndung’u, however, only focused on the indefiniteness and dehumanising aspects of life imprisonment. It failed to engage with this test, which may constitute a significant oversight. A detailed proportionality analysis could have strengthened the decision, making it less vulnerable to appeal by providing a comprehensive legal justification for deeming life imprisonment unconstitutional. 

The proportionality test in constitutional law consists of four prongs: legitimate aim, suitability (rational connection), necessity (least restrictive means), and balancing (proportionality stricto sensu). 

First, the measure under review must pursue a legitimate aim that is important enough to justify the limitation of a fundamental right. Similarly, the measure must be suitable or capable of achieving the intended legitimate aim. This prong requires a rational connection between the means used and the objective pursued. The measure should logically lead to the achievement of the aim. Next, the measure must be necessary, meaning there should not be an alternative, less restrictive means available to achieve the same objective. Finally, balancing, i.e., proportionality stricto sensu involves a balancing act, weighing the societal benefits of the measure against the harm done to individual rights. Essentially, the measure should not impose an excessive or disproportionate burden. 

Prong by Prong: Applying the Proportionality Test to Life Imprisonment

Applying the proportionality test to Justus Ndung’u involves analysing whether the life imprisonment sentence, as a form of punishment, is justified under the principles of proportionality. This analysis will determine if the sentence is suitable, necessary, and proportionate in the narrow sense while balancing the rights of the individual against the interests of society. 

1. Legitimate Aim
   

First, we see the legitimate aim of life imprisonment. Here, the primary objective of life imprisonment is to protect society and ensure public safety by permanently removing dangerous offenders who are considered incapable of rehabilitation and likely to re-offend. It also serves as a deterrent to others who might commit similar crimes while providing a sense of justice to victims and society by imposing a severe penalty for serious offences.

Therefore, the author is brought to conclude that the aim of life imprisonment aligns with legitimate objectives in a democratic society, such as public safety, deterrence, and retribution. Thus, it satisfies the first prong of the proportionality test.

2. Suitability (Rational Connection)

In assessing the suitability of life imprisonment, we delve into whether this form of punishment effectively achieves the aims of public safety, deterrence, and retribution. 

Life imprisonment’s permanence ensures dangerous offenders remain removed from society, effectively preventing the threat of potential reoffending. By eliminating the possibility of release, it provides a robust barrier to future criminal activities, thereby enhancing public safety. Furthermore, the severity of life imprisonment may serve as a deterrent to potential offenders. The prospect of spending the remainder of one’s life incarcerated can dissuade individuals from engaging in criminal behaviour, contributing to the prevention of serious crimes.

Considering these factors, life imprisonment can be deemed suitable as it establishes a rational connection to achieving the legitimate aims of public safety, deterrence, and retribution. Its effectiveness in preventing re-offending, acting as a deterrent, and fulfilling society’s demand for justice demonstrates its suitability as a punitive measure within the criminal justice system. Thus, it meets the second prong as well.

3.  Necessity (Least Restrictive Means)

The next step now is the third prong of necessity. The objective here is to assess whether life imprisonment is necessary or if there are less restrictive means that can achieve the same objective. The question that must be answered is: Could long-term but finite sentences coupled with parole provisions ensure public safety while respecting the convict’s potential for rehabilitation?

First, we consider alternative measures such as long-term but finite sentences, rigorous parole systems, and rehabilitation programs. Additionally, finite but long-term sentences ranging from 20 to even 40 years could also incapacitate dangerous offenders for significant periods. Also, a robust parole system could periodically assess the risk posed by offenders, allowing for the possibility of release if they no longer pose a threat. Finally, rehabilitation initiatives hold the potential to transform individuals into non-threatening members of society. They address the root causes of criminal behaviour and provide offenders with the necessary support and resources, thereby promoting public safety and reducing recidivism rates.

Now, we must assess the comparative effectiveness of such alternative measures with life imprisonment.  First, long-term sentences combined with parole and rehabilitation might still protect society without the indefinite nature of life imprisonment. However, the deterrent effect might be somewhat reduced compared to life imprisonment. However, it could still be significant if long-term sentences are severe enough. Finally, such less restrictive measures provide offenders with a chance of rehabilitation and reintegration into society, respecting their human dignity and agency.

Thus, we can see that there are potentially less restrictive means to achieve the same objectives, such as finite long-term sentences with robust parole and rehabilitation systems. Therefore, the author believes the necessity of life imprisonment could be questioned and the third prong is not fully satisfied. 

4. Balancing (Proportionality Stricto Sensu) 

The last prong involves balancing the benefits of life imprisonment against the rights of the individual, particularly the right to dignity. First, we analyse the impact of life imprisonment on individual rights.

One of the biggest issues that arises here is that life imprisonment is indefinite. It leads to a potentially lifelong deprivation of liberty without a defined endpoint. The convict feels like they’re stuck in a never-ending state of uncertainty. Essentially, they are being trapped in limbo, with no clear way out and no chance for things to get better. 

On the question of human dignity, the indefinite nature of life imprisonment can be seen as dehumanising. It strips the convict of any hope for future reintegration into society. This denial of hope undermines their sense of worth and human dignity. It contradicts fundamental principles of human rights, making indefinite life sentences inherently dehumanising. Furthermore, it removes the possibility of the individual making different choices in the future, entirely negating their potential for reformation, violating international jurisprudence, and human rights standards.

Next, we must also look at the societal benefits of life imprisonment and whether the restriction on individual rights is balanced or not. First, we look at the safety and security life imprisonment provides to society. Here, there is absolute certainty that dangerous offenders will not re-offend. Additionally, it satisfies societal demands for retribution, aligning with principles of justice. It addresses the need for accountability and deterrence. 

Now, in balancing the severity of life imprisonment against individual rights, the indefinite and severe nature of the sentence tips the scales unfavourably. The societal benefits of absolute safety and retribution do not sufficiently justify the severe impact on individual rights, especially when viable, less restrictive alternatives are available. Life imprisonment, in its current form, disproportionately infringes on the convict’s right to dignity and potential for rehabilitation. Emphasising this is imperative and in line with the constitutional obligation to safeguard human rights.  Life imprisonment, in its current form, disproportionately infringes on the convict’s right to dignity and potential for rehabilitation. Thus, the author finds that prioritising these factors underscores the need to reassess the proportionality of life imprisonment and explore alternative approaches that uphold both societal interests and individual liberties within the criminal justice system.

Thus, based on the proportionality test we find that 

1. Legitimate Aim: Met. 

2. Suitability: Met. 

3. Necessity: Questionable due to the availability of less restrictive alternatives.

4. Proportionality: Fails due to the disproportionate impact on individual rights compared to societal benefits.
   

Therefore, the High Court’s decision to strike down life imprisonment as unconstitutional aligns with the principles of the proportionality test, particularly regarding the necessity and proportionality in the narrow sense. Explicitly applying this test could strengthen the judgement by considering the less restrictive means and balancing aspects more thoroughly. Furthermore, the foundation of the right to dignity in legal jurisprudence and consonance with international jurisprudence only strengthens the court’s decision. 

Conclusion

The decision in Justus Ndung’u to declare life imprisonment unconstitutional faced scrutiny for lacking a robust legal analysis. In an attempt to rectify this, the author delved into the principles of human dignity, exploring the impact of life imprisonment’s indefiniteness on autonomy and dignity. Additionally, the author used international perspectives to underscore the global consensus on rehabilitation and human dignity in sentencing. Through the lens of the proportionality test, the author dissected the judgement’s legal underpinnings. While the legitimate aim and suitability of life imprisonment were affirmed, its necessity was challenged given viable alternatives. Balancing societal benefits against individual rights revealed a disproportionate infringement on dignity and rehabilitation, rendering the punishment unconstitutional. Through this, an attempt was made to position the judgement as a significant step forward in upholding constitutional rights and ensuring a fair and just criminal justice system.

*Saksham Agrawal is a 2nd-year law student at National Law School of India University, Bangalore

The views expressed above are the authors' alone and do not represent the beliefs of Pith & Substance: The CCAL Blog.