By Vincent Chahale One momentous occasion in the afternoon of January 26, 2016 passed by unnoticed within the legal circles. Perhaps it was the goings on in the Judiciary then that are to blame. The event was happening when grievous allegations had been made against a judge of the Supreme Court and therefore the listlessness with which the profession may have welcomed the news is understood. The Honourable Chief Justice on this afternoon launched the Sentencing Policy Guidelines which are meant to guide judicial officers when sentencing. These guidelines were developed by a task force established by the CJ in May 2014, in which this author was privileged to have been a member. Sentencing has been a subject of perennial concern in Kenya’s criminal justice system. This is because for more reasons than one, it has habitually been conducted devoid of the objectives of sentencing and punishment or unduly influenced by extraneous factors. This has contributed to lack of public trust in the criminal justice system. One concern was and – maybe still is – large disparities in the longevity of sentences imposed where there the offence committed is the same, with similar facts and under similar circumstances. Why, for example, would there be a big difference between sentences meted out to two persons convicted of manslaughter, who had killed persons they found in compromising situations with their spouses and had both pleaded grave and sudden provocation? If all circumstances are similar then it would be incomprehensible to have a large disparity in the sentences meted out to them. Another concern was lack of certainty and transparency which led to unduly excessive sentences for minor offences, whereas in some cases there were decidedly lenient sentences for major offences. This obviously promotes a negative public perception of the criminal justice system where it was felt that societal status of an accused person had an impact on the longevity of the sentence meted out to him. Thirdly, placing much reliance on custodial sentences was also another concern. Statistics indicate that judicial officers tend to mete out custodial sentences even for minor offences for which other forms of punishment would be appropriate. I am careful here not to be understood to be suggesting that the judicial officers in such instances err; far from it. The point is, it is pointless to overcrowd our prisons system with persons who would be rehabilitated elsewhere other than the prisons. Moreover, if the law provides for other forms of sentencing other than custodial ones, why not impose them? To illustrate my point let’s look at the prisons statistics from the Kenya prisons service as at March 2015. Kenya had at this point a prison population of 58,803 persons. This was way beyond the recommended capacity of 16,000 prisoners for our 110 penal institutions spread across the country. Of these, 31,725 were convicted prisoners. More than a third of the convicted prisoners – 12,643 – were serving sentences of three years and below, with some serving custodial sentences of less than one month. Of these, a total of 7,402 had been sentenced to one year and below. The question then is, did all these people deserve custodial sentences, or was there a fraction that would have been sentenced to other forms of punishment such as fines, forfeitures, community service orders, finding security to keep peace and be of good behaviour et cetera? As demonstrated, lack of sentencing guidelines had a ripple effect that went beyond the criminal justice system. At the time the above prison population was being taken, the cost of maintaining one prisoner was Sh400 per day, which translates to Sh23,401,200 per day for all of them. If the same population is maintained for a year, a handsome figure of around Sh8.5 billion is spent to maintain prisoners. If custodial sentences are reduced, a good sum of this money would consequently be saved and utilised elsewhere. This can only be done if there is in existence sentencing guidelines that would structure the manner in which sentences are meted so that judicial officers would not place insistence on custodial sentences. Apart from the above, the exercise of judicial discretion when sentencing if not structured is open to the commission by judicial officers of genuine errors. I say genuine to mean errors which are not deliberate or influenced by other factors such as inducement. Such errors may occur in instances where a judicial officer passes sentence based on a wrong principle, or allows extraneous and irrelevant matters to guide his discretion. Another ground why the exercise of discretion when sentencing needs to be structured is because judicial officers, being human, may be unduly influenced. A judge whose daughter was once raped may be unduly influenced to exercise his discretion wrongly when sentencing an offender convicted of rape, or a matatu driver who appears before a magistrate whose vehicle was that morning hit by a runaway matatu may suffer an injustice. Sometimes discretion may also be abused by making it conflict with policy or equity, or mistaking facts and failing to take into account material facts. The sentencing policy guidelines are meant to structure the exercise of discretion when sentencing to avoid the above pitfalls. There are those who are wont to argue that such guidelines are an interference with judicial discretion, an argument that I do not subscribe to. The proponents of this argument aver that sentencing guidelines are rigid and have a mechanistic process of calculating a punishment therefore curtailing the judge’s discretion. They further argue that using guidelines is more of a mathematical equation which is too inflexible and may lead to injustice. In instances where the guidelines are anchored in statute such as the US Sentencing Reform Act of 1984, it has been argued that it amounts to interference with the doctrine of Separation of Powers. Further, they have maintained that sentencing guidelines replace the traditional role of the Judiciary of deliberation and moral judgement with calculations that covey the impression of scientific precision and objectivity. They therefore argue that the exercise of discretion when sentencing must entirely and solely remain in human hands since guidelines cannot consider individual circumstances and facts of a case, or “feel” the case. A famous UK judge in support of this argument once said ‘‘the exercise of discretion in sentencing must remain in human hands. You cannot programme a computer to register the “feel” of a case, or the impact that a defendant makes upon the sentencer.’’ I find these arguments simplistic and wanting in interpretation of legal doctrines. First, sentencing guidelines do not take away judicial discretion. They simply create an environment in which the exercise of such discretion is structured so that it can be exercised in an equitable manner, and within the confines of the law. If Parliament then legislates such confines, it cannot be argued that it is an interference with the principle of separation of powers. It is simply creating legal boundaries in which such discretion should be exercised. Secondly, judicial discretion is exercised not according to will but by discerning the law and following it. Instruments of the law In “Osborne et al Vs the Bank of the United States [(1824, US) Wheat], Justice Marshal delivered himself thus: “Judicial power, as contradistinguished from the power of the laws, has no existence. Courts are the mere instruments of the law, and can will nothing. When they are said to exercise a discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and, when that is discerned, it is the duty of the court to follow it. Judicial power is never exercised for the purpose of giving effect to the will of the Judge; always for the purpose of giving effect to the will of the Legislature; or, in other words, to the will of the law.” With this goes Lord Mansfield’s dictum in “Rex Vs Wilkes (1770 K.B) 4 Burr”: “Discretion, when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague and fanciful, but legal and regular.” In “Haywood vs Cope (1858)”, Lord Romilly explained that: “… it is most important that the profession, and those who have to advise in reference to this subject, should understand the rule which is adopted in this and the other Courts, which is that the discretion of the Court must be exercised according to fixed and settled rules; you cannot exercise a discretion by considering what, as between the parties, would be fair to be done. What one person may consider fair, another may consider very unfair; you must have some settled rule and principle upon which to determine how that discretion is to be exercised.” (Emphasis supplied) I subscribe entirely to the propositions of these early Law Lords both in the United Kingdom and across the Atlantic. It couldn’t be better explained. This is why the sentencing guidelines are important since they will assist to confine sentencing in Kenya to the principles underpinning sentencing such as proportionality, equality, accountability, inclusiveness, respect for human rights and fundamental freedoms and adherence to domestic and international law. The guidelines will help rid the criminal justice system of injustices that may result due to placing the exercise of discretion solely in “human hands” without settled rules to guide. Consider the following cases: In “Caroline Auma Majabu vs Republic, Criminal Appeal No.65 of 2014” a sentence of life imprisonment and a fine of Sh1,000,000 for having been found in possession of a few grams of heroin worth Sh700 was found to be excessive. I pause here to wonder, was it expected that a person imprisoned for life would strive to pay a fine of such an amount? What would be the penalty anyway if he defaulted a further term of imprisonment? Discrepancies In “Criminal Appeal No. 13 of 2011, Kennedy Munga Vs Republic”, the offender was charged with defilement of a child. The trial court convicted him and sentenced him to serve 3 years’ probation which was clearly against the law, which provides a minimum sentence of 15 years imprisonment for such offences. This sentence was later revised by the superior court to 15 years imprisonment. The accused appealed against both conviction and sentence and the appeal was dismissed. This is a clear case where a judicial officer in the exercise of his unstructured discretion blatantly imposes a sentence unknown for that particular offence. Our judicial system is chockfull with such cases, where the very rudimentary principles of sentencing have been broken. It is my view that time is now in its fullness to structure sentencing to avoid arbitrary, prejudiced, discriminatory, insolent, intrusive and corrupt decisions being made, which only works to bring the criminal justice system to disgrace.
Writer is an Advocate of the High Court