Rethinking the constitutionality of mandatory sentences

Arguments fronted in defence of mandatory sentences are shaky at best. For that reason, the Parliament of Kenya must take steps towards the removal of mandatory sentences from our legislation


By Newton Arori

“Because the judicial branch is naturally ‘feeble’, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches” – Alexander Hamilton, The Federalist, No. 78

Mandatory sentences prescribe a fixed penalty upon conviction, and thus allow the judge/magistrate no discretion upon sentencing. For example, The Penal Code prescribes the mandatory punishment of death upon conviction of certain offences in Kenya thus: “Any person convicted of murder shall be sentenced to death” [Section 204]; “Any person who is guilty of the offence of treason shall be sentenced to death” [Section 40 (3)]; “If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before of immediately after the time of the robbery, he wounds, beats, strikes or uses any other violence to any person, he shall be sentenced to death” [Section 296(2)]; “Any person who administers an oath, or engagement in the nature of an oath purporting to bind the person who takes it to commit an offence punishable with death, is guilty of a felony and shall be sentenced to death” [ Section 61].

The above examples can be contra distinguished with other provisions of the Penal Code regarding sentencing for other offences. For example, on theft, the Penal Code provides thus: “Any person who steals anything capable of being stolen is guilty of the felony termed theft and is liable, unless owing to the circumstances of the theft or the nature of the thing being stolen some other punishment is provided, to imprisonment for three years” [Section 60].

The use of the word ‘shall’ in the former examples as opposed to the phrase ‘is liable’ in the latter case implies that in the former, the judge’s sentencing discretion is limited once the accused person has been convicted/found guilty-the judge has no option but to mete out the prescribed punishment. In the latter case, however, the judge is at liberty to take into account various mitigating circumstances and reduce the sentence appropriately.

Controversy arises from the doctrine of separation of powers. This is the principle that is to the effect that the functions of the three arms of government – Executive, Judiciary and Legislature – ought to be separate and distinct.

Because legislation is passed by parliament, it has been argued that mandatory sentences amount to the usurping the powers of the Judiciary by the Legislature. This concern is expressed by the following views:

“Speaking generally, an infringement occurs when the Legislature has interfered with the exercise of judicial power by the courts, and usurpation occurs when the legislature has exercised judicial power on its own behalf. Legislation that removes from the courts that exclusive function of the judgement and punishment of criminal guilt under a law of the commonwealth will be invalidated as a usurpation of judicial power.” [McHugh, J in Nicholas v the Queen (1998) 193 CLR 173 at 22]

“Mandatory sentencing is a process which cannot be described as judicial since it lacks any form of justification which is the judicial involvement it bestows.” [AJ Ashworth (1992)]
“Mandatory sentences are undesirable because they apply without regard to undoubtedly relevant circumstances of a case with consequent arbitrary and capricious results. Being in effect a sentence imposed by parliament, mandatory sentences remove judicial discretion and amount to unwarranted intrusion on judicial independence.” [New South Wales Law Reform Commission, Sentencing Report No. 79 (1996) at 20]

“Although defendants who face statutory mandatory minimum sentences still receive a sentencing hearing, the discretion of the judge in applying the proper sentence is often curtailed through the inability to impose a less severe sentence than that required by the legislature. The legislature, with no knowledge of what might be just and fair in individual cases, oversteps its sphere of power by mandatory blanket sentences.” [Kieran Riley, Public Interest Law Journal Vol 19:285]

On the other hand, defenders of mandatory sentencing opine that there can be nothing unconstitutional about mandatory sentences. It is most commonly argued that since the accused person is first tried before sentencing, the role of the Judiciary is not usurped. In the case of Palling v Corfield (1970) HCA 33, for example, it was held, “The exercise of the judicial function is the act imposing the penalty consequences upon conviction of the offence which is essentially a judicial act. If the state nominates the penalty and imposes on the court the duty to impose it, no judicial power or function is invaded nor, in my opinion, is there any judicial power or discretion not to carry out the terms of the statute.”

Another defence for mandatory sentences is that such sentences, due to their harshness, play a role in deterring prospective criminals. In R v Latimer (2001) 1 SCR 3, the Canadian Supreme Court upheld a mandatory sentence for murder. In this case, Latimer’s daughter was 12 years old and had severe cerebral palsy as a result of which she was constantly in pain. She was to have an operation aimed at reducing the pain but which was going to inflict a lot of pain in the process. Rather than put his daughter in continued pain, Latimer killed her by putting her in his truck and blocking the tailpipe where she died of carbon monoxide poisoning. Latimer eventually confessed to the killing and was handed a mandatory sentence, which he appealed against, arguing that the imposition of a mandatory life sentence amounted to “cruel and unusual punishment.”

The appeal was dismissed and Latimer’s sentence upheld. In doing so the court concluded, “we are mindful of the important role that the mandatory minimum sentence plays in denouncing murder, particularly in cases where the offence is planned and its consequences are highly publicised so that like-minded individuals may well be deterred by severe sentences.”


K Lutgen (1996) observes, “Sentencing is an intrinsically subjective and discretionary process which requires the exercise of balance and judgement.

In making a case against mandatory sentences, AJ Ashworth (1996) argues, “while parliament is free to impose a framework within which judicial sentencing discretion should be exercised, it is another thing entirely to completely eliminate judicial sentencing discretion.”

Therefore, abiding by the principle of separation of powers, Parliament’s role would simply stop at prescribing the range of punishment that may be meted out for a particular offence. For parliament to nominate a specific punishment and force the court to impose it would be a breach of the said principle.

On deterrence, it is true that punishment may play a role in deterring potential criminals and is indeed one of the goals of punishment. However, in the words of Justice Jacobs in the case of R v Moyse, “…it is a cardinal principle of sentencing that the court, whenever it can properly do so, should temper justice with mercy by imposing the lowest, rather than the highest, sentence of imprisonment that can be justified.”

Desmond Manderson and Naomi Sharp in “Mandatory Sentences and the Constitution: Discretion, Responsibility and Judicial Process” (Sydney Law Review Vol. 22:585) observe, “the punishment of offenders is legitimately undertaken in pursuit of a variety of goals, including deterrence and rehabilitation. In employing a judicial process in order to secure the punishment of an offender, the Legislature cannot altogether ignore the goals which justify the power…it cannot act as though punishment had no purpose at all…deterrence requires us to evaluate what level of punishment will appropriately discourage the offender, or offenders similarly placed, from engaging in wrongful conduct in the future. Deterrence requires us to follow the Kantian sentencing principle of parsimony (the principle of frugality in punishment) and forbids the imposition of punishment in excess of that required to achieve social purposes.”

It is acknowledged that complete separation of powers is not possible – at times the functions of the three arms of government overlap. Still, all measures should be taken to ensure the arms of government retain their independence. As we have seen, the arguments fronted in defence of mandatory sentences are shaky at best. For that reason, the Parliament of Kenya must take steps towards the removal of mandatory sentences from our legislation.



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