MOI UNIVERSITY ANNEX TOWN CAMPUS SCHOOL OF LAW
FLB 400: DISSERTATION PROPOSAL
NAME: RAPANDO ALLAN K.
REGISTRATION NUMBER: LLB/426/09
COURSE SUPERVISOR: MR. G.O. OCHICH
REHABILITATION IN CRIMINAL JUSTICE SYSTEM: RETHINKING SENTENCING IN KENYA 1.1 INTRODUCTION
Criminal law is a collection of laws regulating the power of the state to impose punishments on persons in order to enforce compliance with certain rules.1 The criminal justice system is the system of law enforcement that is directly involved in apprehending, prosecuting, defending, sentencing, and punishing those who are suspected or convicted of criminal offenses.2 The literature devoted to theories of punishment identifies four primary justifications for punishment: incapacitation, deterrence, retribution and rehabilitation.3 The loosely connected bureaucratic structures of police, courts and prisons are commonly referred to as the criminal justice system.4 While many countries have succeeded in bringing down authoritarian regimes and replacing them with freely elected governments, only some of them have successfully developed criminal justice institutions consonant with the democratic ideals of equity, openness and fairness.5 Sentencing is about resolving individual cases fairly and effectively and about structuring criminal justice power.6 Each state defines crimes and applies punishments in its own particular way. Some states experiment with sentencing commissions and structured sentencing guidelines, while others retain traditional unstructured (sometimes called indeterminate) sentencing.7 Though jurists and philosophers have long debated theoretical justifications for punishment, structural and procedural principles for sentencing have rarely received sustained attention.8 Sentencing guidelines are a relatively new reform effort to encourage judges to take specific legally relevant elements into account in a fair and consistent way when deciding whether a convicted offender should be imprisoned, and if so, for what length of time.9 In Kenya, the criminal sentencing regime benefits from the existence of sound legal principles ensconced in its Constitution and Criminal Procedure Code, and at least the schematic of a sensible judicial and appellate process.10 Section 35 of the Penal Code, for example, which addresses conditional discharges, directs the judicial officer to take into account the circumstances of the offence and the character of the offender. However, Kenya has had only limited success in building on some of these fundamentals to implement rational, fair, or transparent sentencing and although no credible statistics are kept (one of many limitations for reform efforts), substantial evidence indicates that gross sentencing disparities exist among similarly situated individuals convicted of the same offense.11 The presence of such unfair issues in criminal justice systems greatly diminishes the value of innocence. As a result, a panacea should be availed to the wrongly convicted in order to redress individual miscarriages of justice and to revive the age-old maxim that it is better to free the guilty that to convict the innocent. Just as there is much worry about wrongfully punishing the innocent, so should there be a commitment to protecting the individual liberties of criminal defendants and limiting governmental power by prompting concerns about over-punishing the guilty.12 Debates over the pros and cons of judicial sentencing discretion have now raged for decades. These debates obscure the consensus that sentencing must balance individualized justice and systemic consistency.13 The true challenge is how best to develop a sentencing structure that can reasonably achieve both goals at once.14 This paper proposes developing a sentencing policy to guide the passing of sentences in criminal cases. 1.2 THE PROBLEM STATEMENT
First and foremost, the criminal sentencing regime in Kenya has failed to administer fair,...
Bibliography: Journals Articles
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