The Illusion of Equality in a Capitalist Society

CRIMINAL SENTENSING IN KENYA

ABSTRACT

The United Nations Office on Drugs and Crime-UNODC on 15/12/2010 offered a consultancy to work with the Kenya National Council on Administration of Justice-KNCAJ to develop and recommend a sentencing policy for Kenyan Judges and Magistrates. The consultancy would work for six months and continue with the same if funds and resources would be available.

 The UNODC is among the global UN offices that struggle in the fight against drugs and transnational crimes. Its commitment is the achieving of health, security and justice for all. This; it achieves by tackling such global threats and delivering legal and technical assistance to prevent terrorism. Member countries are assisted to provide drug users, prisoners, and people vulnerable to human trafficking with comprehensive care and support through human rights based, evidence informed and gender sensitive strategies. Further, it provides technical assistance to countries to review and adapt HIV, illicit drugs and criminal justice policies and legislation and builds capacity of national stakeholders including civil societies and community organizations. It is within the role of giving countries technical assistance to review and adapt criminal justice policies and legislations that UNODC has offered a consultancy to work with KNCAJ.

The KNCAJ is a government body which marks one of the impacts of The Constitution of Kenya 2010. It has among many other functions the mandate to ensure a co-ordinated, efficient, effective and consultative approach to the administration of justice and reform of the justice system subject to section 35 of The Judicial Service Act NO 1 of 2011. It is this mandate that will be furthered by the council in consultancy with UNODC.

INTRODUCTION

This article seeks to highlight a number of reasons of law that the consultancy needs to consider should they recommend either a liberal or a uniform sentencing policy. In it, the impact of the constitutional Human Rights and Fundamental Freedoms shall be raised since they command a lot on the inconsistencies between the intra-national and international sentences. Owing to this reason, issues of international human rights standards shall be brought on board to establish the extend of retentions and adoptions required if any and whether such would be left liberal.

NO CRIME WITHOUT PENALTY AS SET BY LAW.

Sentences of offences being an important part of penal law are set constituent to the crime by the law. For instance the sentence for murder in Kenya is set by the law in the penal code cap 63 section 204 to which section 203 which establishes the offence of murder is a preliquisite. This is an important part of penal law since it observes the general penal maxim nulla crimen nullum poena sine praevia lege poenalli. This has the effect that one cannot be punished for an act which at the time it was committed was not an offence and had no penalty prescribed for it. Supposedly, this is the reason why his lordship justice Mohammed Warsame issued a death penalty in the case of republic V Dickson Mwangi Munene and Alexander Chepkonga-2011. He took a swipe at president Kibaki having commuted death penalties to life imprisonments in 2009, by issuing a death penalty as the only penalty prescribed by law for murder in section 204 cap 63. This was backed by the legal fact that if any other penalty not prescribed by law is issued for murder then the penalty is not for that crime and therefore no crime like murder. Despite this, death penalty has over times been argued as unconstitutional for it interferes with the human right to life-this will be later discussed under the issue of human rights.

Apart from this example of the crime of murder, there are other crimes whose sentence is varied by the law. This brings about two types of criminal sentencing policies. One that is uniform and another which is liberal are the types.

A UNIFORM SENTENCING POLICY

A uniform criminal sentencing policy is one in which Judges and Magistrates are provided with a strict guideline to arrive at a specific sentence for specific offence. This is accurately availed by setting only one consistent penalty for a certain crime through the law regardless of the circumstances in which the offence was committed. For instance in a positivist legal approach like the above case, the sentence for the offence of murder contraryto section 203 and 204 CAP 63 in Kenya would be that of death; that of causing grievous harm contrary to section 234 CAP 63 life imprisonment and that of entering a house with intent to commit felony during the day or at night c/s 305 CAP 63 five or seven years imprisonment respectively-the only penalties prescribed by the law.

However, Kenyan penal law can be put on quest for uniformity on sentencing due to the general provisions which tend to aver that there is no specific penalty for a specific crime. In particular, it is only murder, robbery with violence and treason which seems to have a specific penalty-death. This is due to the effect of section 26 of cap 63 that:

1. “A sentence for imprisonment for any offence shall be to imprisonment or to imprisonment with hard labor as may be required or permitted by law under which the offence is punishable”. This means that if the law creating the offence obliges or allows extension of an imprisonment to an imprisonment with hard labour, then the magistrates and judges have the power to do so.

2. “Save as may be expressly provided by law under which an offence is punishable ,a person liable to imprisonment for life or any other period  may be sentenced to a shorter term”. This implicates that persons convicted for offense whose penalty is imprisonment of whichever period can apart from the express penalty be sentenced for shorter terms of imprisonment.

3. “A person sentenced to imprisonment for an offence may be sentenced to pay a fine in addition or substitution for the imprisonment”. This implicates that convicts of offences whose sentences is imprisonment can be sentenced to both imprisonment and fine or imprisonment only.

A LIBERAL SENTENCING POLICY

A liberal sentencing policy is one that leaves discretion to the judge and magistrate to decide according to the gravity of the particular act constituent to the offence and the impact of mitigation in order to issue a scale of the provided penalty. The laws setting the offence having a varied scale of penalty for the offence, judges and magistrates have the power to issue one among the levels of scale of the penalty. An epitome is the sentence for the offence of rape. Section 3(3) of the Kenyan Sexual Offences Act NO 3 of 2006 provides to the effect that a convict of the crime of rape shall be imprisoned for a term of not less than ten years but which may be enhanced to imprisonment for life.

This form of sentencing policy is well elicited in the Kenyan criminal justice system. Most crimes have a varied scale of penalty which can be issued by Judges and Magistrates on discretion. There are a number of ways in which Kenyan criminal justice system affords avails this discretion.

To begin with, are the general provisions of section 26 of cap 63. These tend to vary any imprisonment to imprisonment with hard labor or imprisonment with fine and all life imprisonments to any justifiable shorter terms of imprisonment.

 Secondly, is an express provision by the law setting the crime. Through this the penalty may be varied by extension, addition, substitution or contraction.

Variation by extension

A sentence is varied by extension by the law setting it if it provides that apart from the mentioned term of imprisonment the convict may be sentenced to any longer term. For instance, “A person who intentionally commits rape or an indecent act with another within the view of family member, a child or a person with mental disabilities is guilty of an offence and is liable upon conviction to imprisonment for a term which shall not be less than ten years”. S 7 .the sexual offences act no3 of 2006. This has the effect that convicts for the crime of sexual assault c/s 7 of the SOA-LOK shall be imprisoned for any term of more than ten years.

Variation by addition

Law varies a sentence by addition if it stipulates that a convict for a particular offence may be given one or two types of penalties. E. G. a person who is convicted of an offence (of false accounting by public officer) under this section shall be liable to a fine not exceeding one million KSHS or to imprisonment of ten years or both. Owing to this the two penalties can be issued together or a single one issued for the same crime.

Variation by substitution

Law varies penalty by substitution of a sentence by the other. Like in the previous example under section 331 of cap 63 a not more than one million KSHS fine may be substituted by a ten years imprisonment.

Variation by contraction

Law may as well vary the sentence by contraction if it effectuates a lesser sentence be issued than the stipulated one. A surprising example is the above case of section 331 of cap 63. A sentence of not more than one million KSHS fine may be issued for the crime of false accounting by public officer. This effectuates that a lesser fine than one million KSHS can be issued for the crime whose penalty can be one million KSHS.

Thirdly, Judges and magistrates are allowed the use of discretionary power in sentencing by the interpretation of the law to which penal law is subject.  Such laws include statutory provisions, constitutional provisions and international law standards.

Statutory provisions may upon the interpretation of the judge vary or outlaw a penalty prescribed for an offence upon conviction. Among the substantial provisions to which penal law is subject are the provisions of the Criminal Procedure Code CAP 75 LOK and The Evidence Act CAP 80 LOK. Provisions CAP 75 deal with the procedure followed during trial. The provisions of CAP 80 deal with the presentation of facts of the case before the court. However most of these provisions bear an impact upon appeal. It is mostly upon appeal, that the judges considering the procedure followed or the evidence presented and the mode of its presentation that the court may vary or outlaw a penalty.

It is in fact a fundamental ground of appeal in case a step of criminal procedure has been skipped. The appellate judge may decide on the appeal by quashing the sentence or varying it. Where a sentence has been quashed it is not more different than similar as taking it as outlawed in that particular circumstance since such has the effect of creating a precedence which bears an authoritative position.

Certain flaws in the evidence admitted and the mode of its presentation before court would form grounds of appeal. This is a matter of statutory provisions of The Kenya Evidence Act Cap 80 LOK. For instance improperly obtained evidence by means of coercion would form grounds of appeal. Judges would interpret provisions against improperly obtained evidence to the effect of either quashing or varying the sentence given upon conviction. This also creates a precedence with a binding effect.

Under the umbrella of laws to which penal law is subject is the constitutional provisions. It is generally and conventionally held, “the constitution is the supreme law of the land”. Any law should be subject to the constitution and any act shall be done subject to it. Penal law is not an exception to this general rule. Due to this judges have interpreted constitutional provisions to bear different implications on sentences for the same crime.

For instance the underlying debate about death penalty has become inexorable due to the different interpretations judges have had over the constitutional right to life. In Kenya this started under the regime of the 1963 Constitution which provided under section 71(1) that No person shall be deprived of his life  intentionally save in execution of the sentence of  a court in respect of a criminal offence under the law of Kenya  of which he has been convicted, and section 74(1) that no person shall be subject to torture or to inhuman or degrading punishment  or other treatment. It stretched to the 2010 Constitution which provides under section 26(1), (3) that every person has the right to life and a person shall not be depraved of his life intentionally except to the extent authorized by this constitution or under any written law. Similar to section 74(1) of the 1963 constitution article 25(1) of the 2010 constitution provides to the effect that despite any other provisions of the constitution the right and fundamental freedom from torture and cruel, inhuman or degrading treatment or  punishment shall not be limited.

It is undisputable that the constitutional provisions give every individual a right to life. However there have been two apple-orange different interpretations. The first one is as witnessed in the case of Godfrey Ngotho Mutiso v republic (2010) eKLR. The case was decided in the version of the interpretation that the execution of death penalty is inhuman and degrading. This had the effect of outlawing execution of death penalty. The second one is as witnessed in the case of republic v Alex Chepkonga and another. Justice Warsame stood firm to the view of articles 26(3) that death penalty is permitted and 50(2) (n) that a person shall not be convicted of an act which at the time of committing was not an offence in Kenya or under international law; while under the rule of nulla crimen nullum poena sine parevia lege poenalli, there cannot be a sentence the   penalty of which is not established by the law creating the offence.  Death penalty then stands as the only penalty for the offences whose penalty is death only.

Lastly is the interpretation of the international standards of human rights. Among the major of these instruments is the United Nations Declaration of Human Rights, The International Covenant of Civil and Political Rights, The International Criminal Court Statute and The African People’s Civil and Political Rights.

Since human rights are absolute and universal, the international and national standards of human rights rhyme. This is because most nations hold true and adopt the international standards. An apotheosis is the adoption of the United Nations Declaration of Human Rights and Fundamental Freedoms in Kenya.

These standards have variedly been constructed by judges to bear varied effect on criminal sentences. For example in the above case the judges having considered the United Nations Declaration of Human Rights, the International Covenant of Civil and Political Rights and the African Charter of Human and Peoples Rights stated that “death penalty still remains despite the strong proclamations about the right to life liberty and security of the person”. However the same instruments have been considered by states which have not retained death penalty in their penal law to justify the outlawing of the same.

CONCLUSION

This analyses and a research done by Rachel Muthoga and Rob Bowman, of The Survey on Sentencing Law and its Practice in Kenya in 2010, corroborate the fact that gross sentencing disparities exist among similarly situated individuals convicted of the same offence. When it is very factual that where sentencing policy is liberal like in Kenya, the disparities, however gross they are, are justified, there is an underlying doubt that the discretion of the judges might be abused. In fact certain instances point out to the abuse of the discretion entrusted on judges.

An epitome of certain instances at which the discretion of the court is abused was elicited by the failure of the Kenyan appellate judges to sail through the vetting process. For instance justice Bosire was quoted to have abused his legal discretion in deciding the matter of the Goldenberg scandal. Though these cases do not involve sentencing for a crime, they analogize the fact that the discretion of the court is at instances abuse. This abuse occasions injustice whenever it occurs be it in civil or criminal cases, at hearing or during sentencing.

Having pointed out the vital reasons for embracing both liberal or uniform sentencing policy and the benefits thereby accrued, it is left to the consideration of the KNCAJ and UNODC consultancy to recommend whichever meets the ends of justice. There is also need for the consultancy to consider whether the Kenyan liberal sentencing system makes justice elusive. This would instigate them to making a rather detailed draft of the policy that would elucidate the scale of justice in sentencing.

AN EXEMPTION FROM A RIGHT

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LEGAL MYSTIC

When the entire world seems to have found the sense of reason in the fight for women’s rights, there has been a great insistence of the same by the activists until the society has turned bigoted of the issue. This article seeks to highlight the mere fact that the phrases Human Rights and affirmative action are used interchangeably in a confusing manner. It insists on the importance of determining what is being sought humanitarianly so that the society can give it humanitarianly. What is of right should also be termed right and the society will grant it as of right.

Arising from the same issue is the reason why we give affirmative action .It is as a result of the understanding that man and woman are equal. In essence all persons are equal. However, the words of Baron De Montesquieu are also realized by the society to be true. In the state of nature, indeed, all men are born equal, but they cannot continue in this equality. Society makes them lose it, and they recover it only by the protection of the laws[1]. The law being created by the people for the people have been moulded to humanitarianly cater for women through affirmative action. The society through affirmative action has fought to promote social equity.

It is by the above reason that the constitution of Kenya 2010 bears a great emphasis on the empowerment of women. It is engraved in the preamble which we consider as a social contract to promote social justice. The political and public office positions have a minimum requirement for the proportion of women to that of men. This is pursuant to articles 27(6 &8), and article 81(b). The two provide to the effect that the government will take affirmative and legislative measures to ensure that no more than two thirds of holders of public offices shall be of the same gender. With this regard, it is for the first time that somewhat Kenyans and  generally the whole world has realized that social justice cannot be obtained at the state of nature. The knowledge of the discourse of inequality informs this conclusion.

Albeit for the same insistence of activism of female rights, it needs be noted that there are the rules of natural justice. These rules of natural justice in practice are purely rightful entitlements to every human creature and should not be taken with adverse distinction. They include the rules of fair play and the rule of law. Their simple indication is that, when the laws apply, they should apply equally to all individuals regardless their being men or women, and that all creatures be explicitly presumed equal regardless their gender.

The brass task of this issue is to show an area of the law that has not only failed to comply to the appeal of affirmative action in favour of women but also has gone beyond the extreme of not treating them equals of all humanity to adversely distinguishing them on both grounds of gender and economic status. This area is the civil procedure law that provides the rights for everyone including paupers to hear.

Order 33 of the civil procedure rules 2010 provide to the effect that, even the poorest persons upon application can institute civil suits. This is a provision that ensures that social justice is accorded to all persons irrespective of the economic status. Rule 3 of the order further provides that “notwithstanding the provisions of the rules the application shall be presented  to the court by the applicant in person unless the applicant is exempted from appearing before the court by section 82, in which case the application may be presented by an authorized agent who can answer all material questions relating to the application and who may be examined in the same manner as the party represented by him might have been examined had the party appeared in person”. This provision has the essence of exempting a woman from exercising the right she is entitled to.  Section 82 of cap 21 worsens the issue providing that “women who according to the customs of their community ought not to be compelled to appear in public shall be exempt from personal appearance in court”.

 This provision is against section 27(4) of the Kenyan constitution 2010. It is an exemption to what is rightfully an entitlement to the women. Arguably this law can be said to be depraving the women of aright generally entitled to all people  by the grounds of their being poor, women and belonging to a certain community that perpetuates gender discrimination.

The article recommends in any offing amendment of the civil procedure rules and civil procedure act cap 21 laws of Kenya the provisions of order 33 rule 3 and section 81 variably be amended to mend the injustice.

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[1] He spirit of laws book xi