Court strips president of powers to determine 'jail term' for minors

President Uhuru Kenyatta during a meeting with a section of Isiolo Jubilee party political leaders at State House, Nairobi. [PSCU]

The High Court has taken away the president’s powers to determine the fate of children who have been found guilty of violating the law.

In a landmark judgment that now changes how minors are punished for committing a crime, Justice Abida Ali Aroni has declared that Section 25(2) and (3) of the Penal Code is inconsistent with the Constitution.

The section provides that a sentence of death cannot be pronounced on or recorded against any person convicted of an offence if it appears to the court he or she was under 18 years. Instead, the person should be detained at the president’s pleasure.

It also gave the president the powers to determine where a minor may be detained and under what conditions should he or she serve the sentence.

Justice Aroni found that holding minors below 18 years under the president’s pleasure is severe and unfair as the Penal Code gives an indefinite sentence.

She ruled that this is against Article 53(1) of the Constitution which provides that a child should not be detained, except as a measure of last resort and when detained should be for the shortest time possible.

Justice Abida Ali Aroni found that holding minors below 18 years under the president’s pleasure is severe and unfair. [Courtesy]

The judge also found that the section violates the independence of judicial officers who ought to hand a sentence under the law.

“The section interferes with the separation of powers set out in the Constitution as it requires judicial officers to cede the powers bestowed on them to another arm of government, the Executive, thus interfering with the independence of the Judiciary,” ruled Justice Aroni.

The judge argues the contested law is also against the African Charter on rights and welfare of the child, which Kenya ratified in 2001. The charter states that minors should not be detained alongside adults and they should be reformed, re-integrated into their families, and where necessary be handed probation for social rehabilitation.

At the heart of the landmark case is a 33-year-old man who has been behind bars for 16 years after a magistrate court ordered him held under the president’s pleasure over robbery with violence offence. He was sentenced while aged 17 on May 4, 2005. The man had appealed the magistrate’s court decision before the High Court but his appeal was dismissed.

The accused was representing himself all through. He again in 2020 filed a constitutional case, this time challenging the sentence. 

Justice Aroni observed that his submissions were well thought out and professionally crafted.

In the case, he argued that the indefinite sentence imposed upon him was unconstitutional as the sentencing envisaged by the constitution is a judicial function that ought not to be ceded to any other authority. The judge ordered that JRM should be immediately released.