Children and pregnant women have been exempted from death sentences while petty and first-time offenders will no longer serve custodial sentences.
These are some of the sentencing policy guidelines published by Chief Justice Martha Koome in a bid to ensure fair sentencing and decongest prisons.
The guidelines, published in the Gazette notice last Friday, seek to standardise the sentencing processes and procedures in all criminal courts.
The CJ states that the rules have been necessitated by several complaints about unfair sentencing by magistrates and judges.
“However, the disparities in the sentences imposed upon offenders who have committed similar offences under similar circumstances reveals a lack of uniformity that undermines public confidence in the Judiciary,” Koome said.
In the guidelines, the CJ avers that despite the nature of the offence punishable by death, no court shall impose the death penalty upon a child.
“This applies even where a child has attained the age of majority by the time the court renders its decision,” the guidelines state.
This is the case with pregnant women convicted of any offence.
“Where an accused person is convicted of several counts of capital offences each attracting the death sentence, the court shall pass the death sentence on each count but direct that the second or subsequent sentences be held in abeyance,” it said.
In an apparent effort to free the correctional facilities, Koome guided judges and magistrates to strongly prefer imposing non-custodial sentences.
According to the CJ, custodial sentences should be reserved for cases where the offence is so serious that neither a fine nor a community sentence can be justified.
“Imprisonment of petty offenders should be avoided, as the rehabilitative objective of sentencing is rarely met when offenders serve short sentences in custody. Further, short terms of imprisonment are disruptive and contribute to re-offending,” the notice states.
In deciding whether to impose a custodial or a noncustodial sentence, judges and magistrates should consider the gravity of the offence and the criminal history of the offender.
The judicial officer should also consider age, the conduct of the offender, the protection of the community and the offender’s responsibility to third parties.
“Over-utilisation of custodial sentences without consideration of the overarching objectives of sentencing has been linked to high recidivism rates and overcrowding in prisons – with the obvious resource implications,” Koome said in the notice.
Currently, there are about 134 prison facilities across the country with a capacity to hold 30,000 inmates.
However, about 60,000 people, double the capacity, are being held in the facilities.
Where the law provides mandatory minimum sentences, the court is bound by those provisions and must not impose a sentence lower than what is prescribed.
“A fine shall not substitute a term of imprisonment where a minimum term of imprisonment is the only option provided,”
Koome guided the magistrates and judges to always take into account the time already served in custody when imposing sentences
Failure to do so impacts the overall period of detention which may result in a punishment that is not proportionate to the seriousness of the offence committed.
“Upon determining the period of imprisonment to impose upon an offender, the court must then deduct the period spent in custody in identifying the actual period to be served,” she states in the gazette notice.
Death penalty and imprisonment are among the 16 penal sanctions recognized in Kenya.
Others are community service orders, probation orders, fines, payment of compensation, forfeiture, finding security to keep the peace and be of good behaviour and suspended sentences.
Also recognised are absolute and conditional discharge, restitution, suspension of certificate of competency in traffic offences, police supervision, revocation/forfeiture of licences, committal to rehabilitation centres and recommendation for removal from Kenya.
As part of freeing up prisons, the guidelines provide that where the option of a fine is provided in the law, the court must first consider it before proceeding to impose a custodial sentence.
If in the circumstances a fine is not a suitable sentence, then the court should expressly indicate the reasons why it is not appropriate to impose a fine.
For community service orders, the guidelines state that where the court intends to commit a person to serve community service for one month and above, it should request a community service officer’s report before pronouncing the order.
“Prior to imposing a CSO, the court must engage with the community service officer to satisfy itself as to the suitability of the work placement and the adequacy of the supervision arrangements,” it states.
For forfeitures, the guidelines state, “Where the court is satisfied of the link between property and the offence committed as set out in the different provisions, and where the court is mandated by the law, it should, in addition to the general punishment meted out to the offender, make an order for forfeiture of the property to the State.”