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Our constitution has some solid and useful provisions about the right to a fair trial – especially for a criminal offence (especially Article 50(2)). That article says hardly anything about the last stage of a criminal trial – when punishment may be imposed on a persons convicted of a crime.
This reminds me of the textbook I used when as a first year student I studied the “English Legal System”. That said something like “If you watched a criminal trial in an English court you might be very impressed –provided you left before sentencing”.
The point was that a lot of law and effort went into trying to ensure that the innocent were not found guilty, while those actually guilty were found to be so. But much less went into to deciding how to treat any person found guilty.
Have things changed?
Article 29
This Article does say no one must be tortured, and also they must not be “treated or punished in a cruel, inhuman or degrading manner.” This is not just about punishment in the criminal justice system as you can see – nor even just about punishment. It could be, and has been, used because of treatment in schools, in hospitals and many other situations.
The Article has been used in various criminal cases, for example to deal the treatment of a mentally ill offender –“ keeping a sick person for an indeterminate period in a prison is cruel, inhuman and degrading treatment.” Also to sentence a person who has committed an offence but is mentally ill to be detained at the “pleasure” of the President. And it has been used in cases challenging the death penalty.
On the other hand, it is designed to deal with extreme situations – not for example to require a criminal sentencing system to be reasonable, effective, based on research.
We do have a law against torture – and to torture someone is a criminal offence,
By the way – you might think “Ah! Didn’t Pastor Mackenzie inflict cruel, inhuman or degrading treatment on his flock?” And there is now an offence of committing such treatment and the penalty is one million shillings or imprisonment for up to fifteen years or both. But this Act does not define what such treatment actually is. In fact it might be possible to challenge the law as too vague.
Improving sentencing
Like other countries, Kenya has had problems producing consistent and fair sentencing standards. For example, a study published in 2016 found that when it came to deciding whether the penalty should involve imprisonment or not “the decision largely depended on the individual judicial officer’s inclination”.
More thought and effort has gone into sentencing in many countries – and in Kenya – in recent years. A few years ago the Judiciary produced Sentencing Policy Guidelines. These point out that the constitution says several things that are relevant to sentencing. The references to dignity (including of both offender and victim), to equality, the rule of law, and to the fact that anyone detained in any way still has rights except those “clearly incompatible” with being detained are examples.
The guidelines are generally based on common sense, and the possible objectives of criminal sentencing in terms familiar to anyone who has looked at this issue.
These are to punish the offender (sometime called retribution) in a just manner, to deter the offender from committing any further similar offence, and to deter others from doing so by fear of a similar punishment, to educate and otherwise persuade the person to change their ways, to try to repair the impact of the crime on the community (restorative justice), sometimes to disable the person from re-offending (so protect the community) by locking them up and to express the community’s rejection of the offender’s behaviour (denuciation).
The guidelines also envisage that more specific guidance would be produced for individual types of offences –which has happened in many countries. This does not yet seem to have happened in Kenya.
The courts have been recently trying to tackle the challenge of fair, effective, constitutional sentencing. Some of the more prominent cases have concerned the big sentences (the death penalty, life imprisonment) or the big issues – especially Parliament fixing minimum sentences). A concern of the system including the DPP has been the many people who are in prison for minor offences – many of them not because they were sentenced to prison but because they could not pay the fines to which prison was the alternative.
The major cases
Katiba Corner previously discussed the Supreme Court case (Muruatetu) in which the court said the Penal Code provision for a fixed death penalty for murder was unconstitutional. We also explained that the court took the view that its ruling on this did not cover other cases like robbery with violence, or minimum sentences under the Sexual Offences Act.
Recently the Court of Appeal decided that life sentences are unconstitutional. They said it was discrimination to prevent those with mandatory life sentences from being able to argue and bring evidence to support their case for a lesser sentence when most people charged with offences could do so.
They also considered that rehabilitation must always be a possible object of punishment – but as life sentences are administered in Kenya, with no possibility of remission for good behaviour, rehabilitation was ruled out.
This case may reach the Supreme Court. But another case – about minimum sentences in sexual offences cases – is about to do so.
There have been a number of cases in different courts on this issue. It is to be hoped that the case or cases before the Supreme Court will raise all the issues so that a final and authoritative decision is possible.
Challenges in various other courts to the minimum and mandatory sentences especially as included in the Sexual Offences Act have been based on various grounds. These have included the fact that it is for judges to decide in sentences in individual cases, not for Parliament to fix them in advance. There is the inequality question – because people convicted of other offences are not subject to these sorts of sentences. And the difficulty of tailoring sentences to the offender – and thus to the possibility of their rehabilitation.
Article 24
As often stressed in this column, Article 24 allows rights to be limited only for a purpose justified in a democratic and fair society. Any limit on rights must take into account the purpose to be achieved, and be no greater an interference with rights than is necessary to achieve the purpose.
These last ideas are what it often called “proportionality”. It has an important part to play in the sentencing issue. Sentencing a person particularly to prison affects rights, most obviously freedom of movement, but it is likely to affect family life and maybe education.
The concept of proportionality is valuable because it is built in to the modern philosophy of sentencing. It is one thing to make the punishment fit the crime – but a proper sentencing system must fit it to the offender and the circumstances as well.
If the law on sentencing does not permit this sort of judgment in certain types of case, then the outcome is unlikely to be proportional in many individual cases. It would be in violation of Article 24.
We have pointed out before a situation that the judges have been concerned about – the young many who has sex with his 16 or17 year old girlfriend, when the latter seems to have been entirely willing. For him the minimum sentence is the same as for the violent rapist who picks on a vulnerable girl.
Conclusion
Court decisions are valuable, but need more. More guidelines (which are not legally binding but are very helpful) are needed for various offences. We need more judicial – and lawyer – education. We need serious consideration of the whole question of sentencing especially sending people to prison. We need a better understanding of what prison really achieves – beyond perhaps disablement of the offender from further offending, and maybe denunciation. BY THE STAR