REPUBLIC OF KENYA
THE JUDICIARY
REPORT OF THE JUDICIAL
TASKFORCE ON SENTENCING
S
MESSAGE FROM THE CHIEF JUSTICE
entencing has been a problematic area in the administration of justice. It is one of those issues
that has constantly given the Judiciary a bad name – and deservedly so. Sometimes out rightly
absurd, disproportionate and inconsistent sentences have been handed down in criminal cases.
This has fuelled public perception that the exercise of judicial discretion in sentencing is a whimsical
exercise by judicial officers.
These Sentencing Guidelines are a response to the challenges of sentencing in the administration of
justice. These include disproportionate and unjustified disparities in respect to sentences imposed to
offenders who committed same offences in more or less similar circumstances and an undue preference
of custodial sentences, inspite of the existence of numerous non-custodial options, which are more
suitable in some cases. Whereas mandatory and minimum sentences reduce sentencing disparities,
they however fetter the discretion of courts, sometimes resulting in grave injustice particularly for
juvenile offenders.
These guidelines recognise that sentencing is perhaps one of the most intricate aspects of the
administration of trial justice. It acknowledges that sentencing impacts not just the individual
offender but also the community, and indeed the entire justice system. They also seek to enhance the
participation of the victim, and generally infuse restorative justice values in the sentencing process.
Significantly, they champion the national value of inclusivity by promoting community involvement
through use of non-custodial sentences in suitable cases.
The guidelines have collated the principles of law that should guide courts in the exercise of their
discretion, so that sentences for analogous circumstances are delivered as transparently and consistently
as practically possible. They are now presented as a one-stop reference that judicial officers and other
practitioners in the justice chain can use to guide their engagements with the courts on the matter of
sentencing. It is my hope that judicial officers and courts will use and rely on these policy guidelines
when sentencing. Ultimately, the goal of having consistency in sentencing will be realised and this
will infuse more stability in the criminal justice chain.
I wish to thank the Taskforce, led by the Hon. Justice Mbogholi Msagha, for their commitment in
developing the guidelines, as well as the International Development Law Organisation (IDLO) for
their technical support.
Hon . Willy Mutunga
Chief Justice
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REPORT OF THE JUDICIAL TASKFORCE ON SENTENCING
FOREWORD
T
he promulgation of the Constitution of Kenya 2010 provided a new impetus for reforming
the Judiciary. The Judiciary embarked on its transformation journey to meet the constitutional
demands. These demands, as translated in the Judiciary’s Transformation Framework, set out
the priority pillars for reform. Recognising its core duty to the public, the Judiciary prioritised peoplefocused delivery of justice in the first pillar. The need for a sentencing policy was identified as a key
outcome to the realising access to and expeditious delivery of justice.
The setting up of the Taskforce on Sentencing was, therefore, an acknowledgement of the need to
continually address concerns affecting delivery of justice in Kenya. The Taskforce was formed against
the backdrop of the need to address problems affecting sentencing in Kenya; most notably, disparities
in sentences, absence of proportionality and uniformity in sentencing and lack of information on the
process of sentences. These concerns are reflected in the three-point mandate given to the Taskforce.
Central to realising this mandate was stakeholder engagement in line with the constitutional dictates
on public participation. Countrywide visits were carried out by targeting representative geographical
regions to ensure the widest possible outreach.These visits targeted prisons as specific constituents, as
well as other stakeholders in the criminal justice system, through representative Court Users Committees.
Engagements also deliberately focused on judges and magistrates, being the primary implementers of
sentencing.Views were further received through written memoranda to the Taskforce. This process also
benefited from studies on sentencing practices in Kenya, as well as review of laws, court decisions
and other literature on sentencing. Comparative studies were undertaken to infuse lessons from other
jurisdictions on implementation of sentencing policies.
The sector-wide engagements have now culminated in the development of the Sentencing Policy
Guidelines that provide a broad-based roadmap for sentencing in Kenya. This Report documents the
journey of the Taskforce.
The launch of the Policy Guidelines paves way for positive transformation of sentencing practices in
Kenya. This report gives guidance on the way forward from these initial steps made in developing
the guidelines. One key of this proposal is the formation of a Sentencing Committee to primarily
oversee the implementation through monitoring and advising on future interventions including periodic
review of the guidelines as will be informed by lessons learnt in the implementation process. The report
also gives insights into the issues of concerns that arose from the engagement process, and suggests
corresponding proposals, some of which, though beyond the mandate of the Taskforce, are nevertheless
crucial to the sentencing process and administration of justice as a whole.
While the Judiciary carries greater responsibility in the successful implementation of the Sentencing
Policy Guidelines, the interdependence of roles enjoins all stakeholders in the criminal justice system
to cultivate collaboration. It is in the recognition of this interplay that the report maps out sector-specific
recommendations that will need to be carried on in the implementation process. The overall goal is to
see the policy goals envisioned in the guidelines infused in our respective operations affecting the
sentencing process in Kenya. This report, particularly in its recommendations, therefore, offers a key
reference guide for realising our diverse roles to improve the administration of justice in sentencing.
It also sets out other complementary efforts that need to be invested for optimal transformation of the
sentencing process.
As this process moves from policy development to the actual implementation, may these documents
not gather dust from lack of use; rather remain living catalysts to improved sentencing practices in
Kenya. Further, the multi-sectoral approach adopted in the development process needs to be carried
on in the implementation. As the Judiciary strives to remain true to the transformational ideals in the
administration of justice, our journey can only be more earnest.
Mr. Justice Mbogholi Msagha
Chairperson - Judicial Taskforce on Sentencing
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TABLE OF CONTENT
Message from the Chief Justice....................................................................................................... 2
Foreword.......................................................................................................................................... 3
1. Introduction............................................................................................................................... 6
1.1
Background.................................................................................................................... 6
1.2
Establishment of the Judicial Taskforce on Sentencing................................................ 6
1.3
Mandate of the Judicial Taskforce on Sentencing......................................................... 7
2. Methodology Employed by the Taskforce................................................................................ 7
2.1
Literature Review........................................................................................................... 7
2.2
Expert and Stakeholder Consultations........................................................................... 7
2.3
Public Participation........................................................................................................ 8
2.3.1 Public Submissions and Hearings....................................................................... 8
2.3.2 Prison Forums..................................................................................................... 8
2.4
Focus Group Discussions............................................................................................... 9
2.4.1 Court Users Committees..................................................................................... 9
2.4.2 Judicial Officers.................................................................................................. 9
2.5
Validation Meeting with Stakeholders........................................................................... 9
2.6
Challenges Faced by the Taskforce................................................................................ 9
3. Findings of the Taskforce on Sentencing.................................................................................. 9
3.1 The Anatomy of the Sentencing Problem in Kenya....................................................... 9
3.1.1 Significant, Disproportionate and Unjustified Disparities.................................. 9
3.1.2 Overutilisation of Custodial Sentences............................................................. 10
3.1.3 Indeterminate Sentencing vis-a-vis Mandatory Sentences...............................11
3.1.4 Victims Participation and Consideration of Victims’ Needs
During Sentencing.............................................................................................11
3.1.5 Sentence Specific Concerns...............................................................................11
4. Other Issues Related to Sentencing........................................................................................ 12
4.1
4
Negative Impact of Mandatory Minimum Sentences for Sexual Offences................. 12
REPORT OF THE JUDICIAL TASKFORCE ON SENTENCING
4.2
Treatment of Children in Conflict with the Law.......................................................... 12
4.3
Treatment of Offenders with Mental Illnesses............................................................. 13
4.4
Custodial Terms Under the President’s Pleasure......................................................... 13
4.5
Remission of Terms of Imprisonment and the Role of the Advisory
Committee on the Power of Mercy.............................................................................. 13
4.6
Drugs Rehabilitation Centres....................................................................................... 14
4.7
Rehabilitation of Offenders.......................................................................................... 14
4.8
Victim Participation..................................................................................................... 15
4.9
History of the Offender................................................................................................ 15
4.10 Inter-Agency Coordination.......................................................................................... 15
4.11 Public Awareness......................................................................................................... 15
5. Developing Sentencing Policy Guidelines.............................................................................. 16
6. Summary of Recommendations............................................................................................. 16
6.1
Recommendations Relating to the Judiciary................................................................ 16
6.2
Recommendations Relating to the Department of Probation and
.
Aftercare Services........................................................................................................ 17
6.3 Recommendations Relating to the Kenya Prisons Services........................................ 18
6.4
Recommendations Relating to the Kenya Police Service............................................ 18
6.5
Recommendations Relating to the Office of the Director of Public Prosecution....... 19
6.6
Recommendations Relating to the National Council on the
.
Administration of Justice............................................................................................. 19
6.7 Recommendations Relating to the National Legal Aid Programme........................... 19
6.8
Recommendations Relating to the Kenya Law Reform Commission........................ 19
6.9
Recommendations Relating to the Ministry Of Health................................................ 20
6.10 Recommendations Relating to the Treasury................................................................ 20
REPORT OF THE JUDICIAL TASKFORCE ON SENTENCING
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1INTRODUCTION
1.1Background
Sentencing is a critical stage in which the key objectives of the criminal justice system are either
actualised or undermined. Public perceptions of the criminal justice system are, more often than not,
linked to the sentencing process. The sentencing regime must, therefore, be above board and not only
deliver justice but also appear to be doing so.
Various concerns have been raised regarding the sentencing process in Kenya. First, there are
unjustifiable disparities in sentences for offences that are similar and committed under substantially
similar circumstances. This has eroded public confidence in the criminal justice system. Secondly, in
some cases, unduly lenient or excessive and sometimes inappropriate sentences are imposed. Thirdly,
mandatory sentences imposed by law, whilst addressing the unjustifiable disparities and unduly
lenient sentences, have resulted in injustices in some cases. Fourth, victims have been relegated
to the periphery of the criminal justice system. They do not participate during sentencing and their
needs are not taken into account at this stage. Fifth, the sentencing guidelines provided in case law
are not adequate and these concerns raised can, to a large extent, be ameliorated by comprehensive
guidelines.1 Sixth, there is no sentencing policy in Kenya that underpins the sentencing process.
It is against this background that the Judiciary Taskforce on Sentencing was formed to ascertain
critical issues linked to the sentencing process and to identify ways in which these can be addressed.
1.2
Establishment of the Judicial Taskforce on Sentencing
The Chief Justice appointed the following members to the Judicial Taskforce on Sentencing:
Mr. Justice Mbogholi Msagha - Judiciary - Chairperson
Dr. Sarah Kinyanjui - University of Nairobi, School of Law, Mombasa Campus - Vice Chairperson
Mr. Justice Fred Ochieng - Judiciary
Lady Justice Jessie Lessit - Judiciary
Tripsisa Wamae - Judiciary
Charles Mbogo - Judiciary
Abdul Omar - Office of the Chief Justice
Beverline Ongaro - Office of the Deputy Chief Justice
Fred Musyimi - Probation and Aftercare Services
Vincent Monda - Office of the Director of Public Prosecution
Robert Kaei - Kenya Prison Service
Samuel Nyabengi - National Police Service
Katra Sambili - National Council for the Administration of Justice
1 Legal Resources Foundation, Sentencing in Kenya: Practice, Trends, Perceptions and Judicial Discretion (LRF 2011)
26.
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REPORT OF THE JUDICIAL TASKFORCE ON SENTENCING
Grace Okumu - Law Society of Kenya
Janet Munywoki - Legal Resources Foundation
Felix Kyalo - International Development Law Organisation
Jeptum Bargoria - United Nations Office on Drugs and Crime
Njeri Thuku - Judiciary Training Institute
Mr. Justice Joel Ngugi - Judiciary Training Institute
Christine Ochieng - Federation of Women Lawyers in Kenya
Timothy Bryant - Christian Legal Education Aid and Research
Grace Okumu, representing the Law Society of Kenya, was succeeded by Ian Maina. Jeptum Bargoria,
representing the United Nations Office on Drugs and Crime, was succeeded by Ane Birk-Kamara.
To enable her offer extensive technical support (under the auspices of IDLO) to the Taskforce,
the Vice Chairperson, Dr Sarah Kinyanjui, relinquished her position. Ms. Janet Munywoki was
subsequently appointed the Vice Chairperson in her place. The Secretariat of the Taskforce was based
at the Judiciary Training Institute.
1.3
Mandate of the Judicial Taskforce on Sentencing
As set out in the Kenya Gazette Notice dated 16th June 2014, the terms of reference for the Taskforce
were to:
a) review past sentencing patterns, policies and outcomes.
b) report on how to reduce unwarranted, disparity, increase certainty and uniformity; and promote
proportionality in sentencing.
c) create and roll out a plan for suggested intervention; including educating and engaging the
public and other stakeholders on the sentencing system and its effectiveness.
2.
Methodology Employed by the Taskforce
2. METHODOLOGY EMPLOYED BY THE TASKFORCE
2.1
Literature Review
Relevant literature as well as domestic, regional and international legal instruments related to
sentencing were reviewed. Case law was also reviewed to establish how Kenyan courts arrive at
sentences. The review also involved interrogation of sentencing policies and guidelines adopted in
other jurisdictions.
2.2
Expert and Stakeholder Consultations
A consultative meeting between the Taskforce and stakeholders in the criminal justice system was
held on 17th October 2014. The following is a list of some of the institutions/organisations that were
represented:
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1. Judiciary (Judiciary Training Institute, Office of the Chief Justice, Office of the Deputy Chief
Justice).
2. Kenya Police Service
3. Department of Probation and Aftercare Services
4. Federation of Kenya Women Lawyers (FIDA - Kenya)
5. National Council on the Administration of Justice
6. Commission for the Implementation of the Constitution
7. Kenya School of Law
8. Department of Children’s Services
9.KELIN
10.Office of the Director of Public Prosecutions
11.Director of Criminal Investigation (DCI)
2.3Public Participation
Article 10 of the Constitution requires public participation in the making and/or implementation of
public policy decisions. In compliance with this constitutional provision, the Taskforce undertook the
following:
2.3.1Public Submissions and Hearings
Through advertisements, published in national newspapers on 18th January 2015, the public
was invited to submit memoranda on sentencing in Kenya. They were further invited to public
hearings in the following eight stations: Nairobi, Mombasa, Garissa, Kakamega, Embu, Eldoret,
Kisumu and Nyeri.
The selection of the eight stations was modeled on the Provincial Administration structure,
previously used in Kenya. The criteria used for the selection of these was geographical
representativeness and centrality of the station to enable respondents travel from other stations.
2.3.2Prison Forums
Engagement forums were held in the following prisons which are located in the selected stations:
Kamiti Maximum Security Prison, Lang’ata Women Prison, Shimo La Tewa Main Prison, Shimo
La Tewa Women Prison, Embu Main Prison, Embu Women Prison, Nyeri Main Prison, Nyeri
Women Prison, Eldoret Main Prison, Eldoret Women Prison, Garissa Main Prison, Kakamega
Main Prison and Kakamega Women Prison.
In addition to these prisons, other forums were held in Shimo La Tewa Borstal Institution and
Shikusa Borstal Institution.
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REPORT OF THE JUDICIAL TASKFORCE ON SENTENCING
2.4
Focus Group Discussions
2.4.1
Court Users Committees
Focus group discussions comprising of Court Users Committee members were held in the eight
selected stations.
2.4.2 Judicial Officers
In the selected stations, focus group discussions comprising of judicial officers were held.
2.5Validation Meeting with Stakeholders
A stakeholders’ meeting was held on 12th June 2015 to validate the draft Sentencing Guidelines
and Policy. The meeting provided an opportunity for stakeholders to interrogate the guidelines and
validate them.
2.6
Challenges Faced by the Taskforce
In carrying out its mandate, the Taskforce faced two main challenges. First there was poor turnout in
the public hearings. The hearings had been advertised through the local newspapers and court users
committees as well as civil society networks. From this experience, additional channels of reaching
out to the public such as radio and television stations, local community and religious organisations
should be explored for future engagements. Second, the Taskforce would have liked to hold more
hearings at more locations but was working within financial limits. However, as reported above,
the geographical spread of the selected hearing venues was relatively representative of the nation.
Further, the Taskforce provided an opportunity for the submission of memoranda throughout the
engagement process.
3.
FINDINGS OF THE TASKFORCE ON SENTENCING
3.1 The Anatomy of the Sentencing Problem in Kenya
The literature review and public engagements carried out by the Taskforce revealed the following:
3.1.1 Significant, Disproportionate and Unjustified
Disparities
A survey commissioned by the Legal Resources Foundation in 2011 across ten court stations
in Kenya revealed that significant and unjustifiable disparities existed in sentences meted out
to offenders who had committed the same offences in substantially similar circumstances.2
These stark disparities have contributed to negative perceptions against the justice system.
2
Legal Resources Foundation, Sentencing in Kenya: Practice, Trends, Perceptions and Judicial Discretion (LRF
2011) 10-17.
REPORT OF THE JUDICIAL TASKFORCE ON SENTENCING
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Some respondents attributed disparities to corruption or judicial officers’ personal prejudices.
3
It also emerged that although judicial officers interviewed took into account more or less
the same factors during sentencing, the unstructured and wide sentencing ranges gave them
too much leeway. The majority of judicial officers thus welcomed sentencing guidelines that
would structure the sentencing process.4 It was clear, however, that the sentencing guidelines
should not fetter the sentencing discretion as cases present unique circumstances which require
different responses.5
Similar findings were made by the Taskforce during the prison visits. In all the prison visits,
prisoners raised concerns over the disparities in the sentences.
The need to promote uniformity and certainty in sentences to enhance justice and to promote
public confidence in the system cannot be gainsaid.6 Certainty in sentencing would contribute
towards meeting the deterrence objective of the criminal justice system as well as providing
a framework for the use of plea agreements which are recognised by the Criminal Procedure
Code.7
On the basis of these findings, the Taskforce engaged stakeholders and developed Sentencing
Policy Guidelines to provide guidance on the use of discretionary powers of sentencing. Such
guidance is geared towards promoting consistency and certainty in the sentencing process. The
Sentencing Policy Guidelines are also intended to provide a foundation for the development of
comprehensive guidelines gradually.
3.1.2 Overutilisation of Custodial Sentences
The Taskforce heard that there is an increase in the number of non-custodial sentences meted
out.8 However, there are still many offenders who are sentenced to serve custodial sentences
in cases with suitable non-custodial options. As at 12th June 2015, there were 12,306 prisoners
in Kenya serving sentences of three years and below; and 1,347 prisoners serving sentences
of three months and below.9 Whilst factors such as recidivism could contribute towards petty
offenders being sentenced to imprisonment, these short sentences also suggest that some ideal
candidates for non-custodial sentences end up in prison. A key concern amongst judicial
officers, which explains their reluctance over the use of non-custodial sentences, has been lack
of adequate structures for the supervision of these sentences.10 The Taskforce was however
informed that with proper coordination and engagement between judicial officers and the
Department of Probation and Aftercare Services, this concern can be addressed.
Short committals are usually disruptive to the offenders and hardly achieve the rehabilitative
objective. It was, therefore, proposed that these short committals be reviewed in favour of noncustodial terms for petty offenders and reserve custodial terms for offenders of grave offences.
If properly applied/devised, non-custodial measures can combine punishment, rehabilitation
and restitution in the same measure. This can be achieved by engaging offenders in services
3
4
5
6
7
8
9
10
See also Legal Resources Foundation (n 2) 30.
Legal Resources Foundation (n 2) 26.
Legal Resources Foundation (n 2) 22.
The Judiciary Training Institute, Report of the Judiciary Retreat of the Judicial Taskforce on Sentencing (2014) 18.
Ibid 18.
This was also noted in Legal Resources Foundation (n 2) 20.
Kenya Prisons Service Headquarters, 12th June 2015.
Legal Resources Foundation (n 2) 22.
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REPORT OF THE JUDICIAL TASKFORCE ON SENTENCING
that both contribute to ‘righting the wrong’ committed against victims and providing a service
to the community. By avoiding prison, offenders also avoid disrupting their livelihood which
minimises the need for (state-funded) rehabilitation. Further, CSOs can contribute to overall
crime prevention if services are devised to create awareness of the effects of offences (best
applied to ‘victim-less’ offences like drunk driving or tax avoidance).
3.1.3
Indeterminate Sentencing vis-a-vis Mandatory
Sentences
The sentencing framework in Kenya is largely indeterminate. Against this backdrop, the
Sexual Offences Act introduced minimum mandatory sentences in sexual offences to address
the unduly lenient sentences that were being meted out. While meeting this objective, a key
concern has been that the lack of discretion has led to injustices as discussed in paragraph 4.1
below. A similar example is the punitive mandatory fines imposed by the Forests Act which
have led to the imprisonment of offenders who are unable to pay the fines.11 It is, therefore,
clear that mandatory sentences have shortcomings and what is needed to promote consistency
and certainty in sentencing is a framework of accountability within which judicial officers can
exercise their discretion.
3.1.4Victims’ Participation and Consideration of Victims’
Needs During Sentencing
The Criminal Procedure Code provides for the submission of victim impact statements.12
Victims are also entitled to present information for consideration at all stages of the trial,
including at the time of sentencing.13 The victims’ place in the criminal justice system in
Kenya has typically been at the periphery. There are, however, efforts to enhance victims’
participation.14 Of particular concern has been that while conviction and sentences meted
out deliver justice to the victim, specific needs of the victim are not taken into account. To
address this, the Victim Protection Act expressly recognises the victims’ rights to restitution
and compensation.15 The Act has provided a broad framework for the meeting of the victims
specific needs but guidelines on how this should be done in practice are necessary.
3.1.5 Sentence Specific Concerns
The Taskforce received submissions on issues related to the specific sentences provided by
law in Kenya. Having reviewed these submissions, the conclusions were incorporated in the
situational analyses in the Sentencing Policy Guidelines.16 This approach was taken to provide
the courts with the rationale behind the policy guidelines. It was hoped that this would enable
judges and magistrates to engage with the policy guidelines at a level in which they would not
only internalise them but also be in a position to contribute in future appraisals.
11
12
13
14
15
16
See, for example, section 52 (2).
Criminal Procedure Code, s. 329 (c).
Victim Protection Act, 2014, s.20.
Judicial Training Institute, Report of the 1st Stakeholders’ Meeting Organised by the Taskforce on Sentencing Held
on 17th October 2014 at the Judiciary Training Institute (2014) 5.
2014, s. 23.
See Paragraphs 6 to 19 of the Sentencing Policy Guidelines.
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4. OTHER ISSUES RELATED TO SENTENCING
4.1 Negative Impact of Mandatory Minimum Sentences for
Sexual Offences
Where the law provides mandatory minimum sentences,17 the court is bound by the provisions and
must not impose a sentence lower than what is prescribed.18 Whilst, mandatory minimum sentences
ensure that there is uniformity and certainty in the sentences imposed, there are huge concerns over
the lack of discretion to take into account the unique circumstances of the offender and the offence.
Of particular concern are the mandatory minimum sentences set out by the Sexual Offences Act. The
sentences have resulted in injustices when dealing with young offenders who engage in consensual
sexual intercourse with minors who are more or less their peers. For instance, during the prisons
visits, cases were submitted to the Taskforce in which male offenders of between 18 and 20 years
are convicted for having defiled seventeen year old girls. Similarly, at the borstal institutions, the
Taskforce heard of boys convicted of having defiled girls who are their peers and had engaged in
consensual sexual conduct. In some of these cases, it is clear that the provisions of the Sexual Offences
Act are being used to unduly and excessively punish young offenders who end up bearing the brunt of
consensual conduct. Further, in some cases, a conflict between cultural practices and the law is evident.
In some cases, young men marrying a girl under the age of eighteen but in line with their acceptable
cultural practices have found themselves serving prison terms for having committed offences under
the Sexual Offences Act. The contextual realities are at odds with the law, as evidenced by narratives
of victims, who are minors, informing the court that the offender is actually a “husband” who has
been removed from their “home” by the criminal trial.
Secondly, the Taskforce noted that there is a rapidly growing population of sexual offenders in the
prisons. This was noted against the backdrop of rising incidences of sexual offences. There is an
urgent need for extensive research to establish, first, the trend of sexual offences and the impact, if
any, of the mandatory minimum sentences set out in the Sexual Offences Act. Secondly, to determine
the impact of these sentences on young offenders bearing in mind the circumstances of the offences.
Based on the findings of the research, law reform should be embarked upon to address the issues
raised.
4.2
Treatment of Children in Conflict with the Law
The Taskforce noted that with Shimo la Tewa Borstal, Shikusa Borstal and Kamiti Youth Corrective
Centre being the only facilities catering for boys serving a custodial order, children from other stations
end up being held far away from their home locations. There is need to establish other institutions
in the different counties to facilitate the involvement of parents or guardians in the rehabilitation of
child offenders.
It was also brought to the attention of the Taskforce that the short committal periods at the corrective
centres did not achieve the rehabilitation goal. With inadequate information to form the basis of
concrete recommendations as to whether the concept of short committal periods at the corrective
centres should be abolished, the Taskforce recommends further research to guide the way forward.
The research should also interrogate whether more institutions are required or whether the embracing
of non-custodial options would dispense with this need.
17 For example, the Sexual Offences Act.
18 This is in spite of the undue injustice caused in light of the individual circumstances. The only recourse is law
reform. See Kennedy Munga v. Republic [2011] eKLR in which an order for probation in a defilement case was held
to be illegal and was revised to fifteen years.
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REPORT OF THE JUDICIAL TASKFORCE ON SENTENCING
4.3
Treatment of Offenders with Mental Illnesses
It was highlighted that mental hospitals are inadequate and therefore there is a need to expand their
facilities and services.
A further concern was that there is no mechanism of identifying cases of mental illness during the
early stages of trial. This is cause for concern in respect to offenders who are not represented by
advocates.
Engagement with offenders with mental illness during the criminal trial and upon conviction remains
problematic. There is need for concerted review to establish a clear mechanism of dealing with these
offenders.
4.4
Custodial Terms Under The President’s Pleasure
In addition to offenders found to be guilty but insane, offenders who are convicted of an offence
punishable by death, but which was committed when the offender was below the age of 18, are to be
held in custody at the President’s pleasure.19 Cases of such offenders held for inordinately long terms
at the President’s pleasure without any form of review were brought to the attention of the Taskforce.
There is need for law reform providing for reviews after fixed periods of time and for the Power
of Mercy Committee to consider such offenders for release where it is evident that they have been
rehabilitated.
4.5
Remission of Terms of Imprisonment and the Role of the
Advisory Committee on the Power of Mercy
Pursuant to the Statute Law (Miscellaneous Amendments) Act of 2014, the Kenya Prisons Service
no longer has the mandate to consider prisoners for the remission of one third of their sentences on
the basis of industry and good conduct.20 During the prisons visits, the Taskforce was informed that
this is contributing to indiscipline in prisons and is undermining efforts to rehabilitate prisoners in the
absence of an incentive. It was intended that the Advisory Committee on the Power of Mercy would
now consider deserving cases for remission but in view of the large prisons population, the committee
cannot effectively dispense with this mandate. The Kenya Prisons Service is best placed to perform
this task and this provision should be reconsidered.
The Advisory Committee on the Power of Mercy is established by article 133 of the Constitution
which mandates the committee to advise the President in respect to:
a) granting a free or conditional pardon to a person convicted of an offence;
b) postponing the carrying out of a punishment, either for a specified or indefinite period;
c) substituting a less severe form of punishment; or
d) remitting all or part of a punishment.
In view of this broad mandate, the Advisory Committee on the Power of Mercy can consider and
19 Penal Code, s.25 (3).
20 Section 46 (1) of the Prisons Act is now repealed.
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13
address many of the issues of concern relating to individual prisoners. However, as noted above, the
prison population served by the committee is vast and poses a challenge to the timely consideration
and dispensing of suitable cases for the exercise of the power of mercy. During all the prisons visits,
the delay in the consideration of cases by the Committee was flagged. Re-mandating the Kenya
Prisons Service to remit sentences would reduce the cases before the committee hence making their
workload manageable.
4.6
Drugs Rehabilitation Centres
For courts to fully utilise the option to order an offender to a drugs rehabilitation centre, there is need
for the establishment of more centres to cater for the increased demand.
4.7
Rehabilitation of Offenders
A major concern noted by the Taskforce is that the criminal justice system, as currently managed,
does not facilitate the rehabilitation of offenders. Three main issues related to this were singled
out. First, the overcrowding and inadequate resourcing of the Kenya Prisons Service undermines
the rehabilitation of offenders during imprisonment. Attention to individual prisoner’s rehabilitation
needs remains insurmountable in view of the large numbers of the inmates. In the same vein, the
funding allocated to the Kenya Prisons Service cannot adequately cater for effective rehabilitation
programmes. Whilst it was noted that the Kenya Prisons Service has made remarkable efforts to
stretch the available resources and partner with donor institutions and individuals to expand their
programmes, the situation is still dire. There is also need to develop further programmes that address
root causes of criminal tendencies such as psychological and developmental factors. For instance,
offenders convicted of sexual and other violent offences need tailor-made counselling programmes.
Second, the welfare of prison officers, who play a key role in the rehabilitation process, needs to be
addressed. Again, there are ongoing efforts to address issues such as housing but overall the officers’
standard of living is still low. The urgent issues include review of their salaries, provision of decent
housing, support to acquire further relevant skills and psychosocial support to carry out their tasks.
Third, the lack of aftercare services on release from prison waters down rehabilitation efforts made
during imprisonment. On release from custody, many offenders are unable to get employment and
lack the wherewithal to set up enterprises using the skills acquired in prison.
Fourth, doubt is cast on the utility of short committals of juveniles to the corrective centres. The
stakeholders argued that the short committals are not in tandem with the rehabilitative objective when
dealing with juveniles. Rehabilitation programmes require adequate time but in the case of juveniles
committed to the corrective centres, longer periods would be punitive as they are in most cases petty
offenders. It was, therefore, proposed that these short committals be reviewed in favour of noncustodial terms for petty offenders and reserve custodial terms for offenders who have committed
grave offences.
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REPORT OF THE JUDICIAL TASKFORCE ON SENTENCING
4.8Victim Participation
Victims remain at the periphery of the criminal trial and the sentencing process. Stakeholders
challenged this position and called for a more robust engagement with the victim. In addition to
providing an opportunity to the victim to submit to the court during the sentencing hearing, the
submission of victim impact statements should be enhanced. To facilitate this, the Chief Justice should
publish rules on victim impact statements in line with section 329F of the Criminal Procedure Code.
There is also need for a paradigm shift from sheer retributive justice to restorative justice, thus striving
to meet the needs of the victim through orders such as reparation and compensation.
4.9
History of the Offender
The criminal history of the offender is pertinent when determining the most suitable sentence.
Stakeholders noted that due to the lack of requisite technology and limitations in record keeping,
judicial officers are not accurately informed of this aspect.
There is need for an integrated electronic system to ensure that accurate databases are kept on offenders
and that the different agencies within the criminal justice system are networked. Further, there is need
for a well-equipped forensic lab to ensure that offenders are linked to all the offences they commit.
4.10 Inter-Agency Coordination
During the Taskforce engagements, the importance of the role played by the Department of Probation
and Aftercare Services was reasserted. The pre-sentence reports submitted by probation officers
inform the judicial officers in the determination of the most appropriate sentence. Further, probation
officers supervise the probation orders and the community service orders and, therefore, determine
whether the objectives of those sentences are met.
Bearing in mind the importance of the role played by the probation officers, concerns were raised
over possible malpractices by some of them. There is, therefore, need for the Probation of Aftercare
Services to consistently enforce the code of conduct for probation officers and to ensure that the
constitutional requirements of accountability and transparency are adhered to. Further, during
sentencing hearings, offenders and prosecutors should be allowed to challenge/question the content
of the reports.
4.11Public Awareness
The literature review, public and stakeholder engagements revealed that the lack of public awareness
on the different sentences recognised in Kenya, process and principles of sentencing contribute to the
negative perception of courts. Further, the failure to clearly articulate the reasoning behind a sentence
meted out contribute to offenders’ discontent and speculations of extraneous factors influencing the
decision such as corruption. It is, therefore, incumbent upon the Judiciary to design public awareness
programmes to provide the public with more information on sentencing. Clear articulation of the
reasons for the decisions should be present in all cases.
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5.
DEVELOPING SENTENCING POLICY GUIDELINES
Following a review of relevant literature and engagements with the public and stakeholders, the
Taskforce established that there was need to develop sentencing policy guidelines to address the
concerns on sentencing that were identified.
Developing sentencing guidelines is in tandem with constitutional provisions requiring public officers,
to exercise objectivity and impartiality21 as well as to carry out their duties “in a manner that promotes
public confidence in the integrity of the office”.22 Such guidelines would provide a framework within
which sentences meted out can be justified. They would also promote consistency thus restoring
public confidence in the system.
In respect to the nature of sentencing guidelines, the Taskforce was informed that prescriptive, stringent
and mechanical guidelines are undesirable.23 Stakeholders advised the Taskforce that sentencing
guidelines should provide judicial officers with a structure within which to exercise their discretion
as opposed to fettering it. The Taskforce took into account lessons from other jurisdictions which
illustrate how prescriptive and mechanical guidelines strip off judicial officers of the opportunity
to take into account some unique circumstances presented by individual cases. For instance, the
United States of America model in which guidelines structured upon arithmetic computation has been
criticised for being too rigid and mechanical. In this model, judicial officers calculate the sentence
based on a set out arithmetic sentencing grid.24
During engagements with the stakeholders, it was highlighted that the sentencing policy guidelines
ought to identify the objectives of sentencing and provide guidance on how these objectives would be
achieved. It was pointed out that the guidelines, however robust, cannot be exhaustive. The sentencing
policy guidelines would, therefore, equip judicial officers with principles that would guide their
discretion in all cases including those that may not be expressly or fully addressed by the guidelines.
In line with these findings, the Taskforce on Sentencing developed draft Sentencing Policy Guidelines
which were circulated to stakeholders for comments and validated on 12th June 2015.
6. SUMMARY OF RECOMMENDATIONS
In light of its findings, the Taskforce on Sentencing makes the following recommendations with a
view to streamlining the sentencing regime and promoting certainty, uniformity and proportionality
in sentencing:
6.1
•
Recommendations Relating to the Judiciary
The Sentencing Policy Guidelines developed by the Taskforce set the foundation for developing
the sentencing regime. To build upon this, offence-specific sentencing guidelines should be
developed gradually to address issues unique to specific offences.
21 Constitution of Kenya, 2010, A. 10 (1) and 10 (2) (c).
22 Constitution of Kenya, 2010, A.73 (2) (b).
23 See, Shawn D. Bushway and Anne Morrison Piehl ‘Judging Judicial Discretion: Legal Factors and Racial
Discrimination in Sentencing’ (2001 35 (4) Law & Society Review 733,739; Spohn, How do Judges Decide?: The
Search for Fairness and Justice in Punishment (2nd edn Sage 2009) 239.
24 Spohn, How do Judges Decide?: The Search for Fairness and Justice in Punishment (2nd edn Sage 2009) 239.
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REPORT OF THE JUDICIAL TASKFORCE ON SENTENCING
•
A Sentencing Committee should be established to:
a) review the operation of the Sentencing Policy Guidelines and where need be, revise the
guidelines;
b) develop offence specific sentencing guidelines;
c) sensitise judicial officers on sentencing guidelines;
e) examine sentencing practices and trends with a view to identifying the need for further
guidelines as well as any other form of intervention.
6.2
•
Upon gazetting of the Sentencing Policy Guidelines, the Judiciary Training Institute
should organise training of judicial officers on the use of the guidelines.
•
To ensure the effective operation of the probation orders and community service orders, the
judicial officers chairing the Community Service Orders Case Committees and members
of the Probation Orders Case Committees in each station should be committed and offer
effective leadership.
•
Resident magistrates should routinely exercise their oversight powers as prisons` visiting
justices.
•
Adequate storage facilities for exhibits and forfeited items must be provided in all court
stations.
•
The participation of the victim should be facilitated throughout the trial and at the
sentencing stage. Judicial officers should, therefore, ensure that victims are aware of their
right to participate or not. Victims’ views should be taken into account whenever the court
makes decisions.
•
To enhance the submission of victim impact statements, the Chief Justice should publish
the requisite rules on victim impact statements in accordance with section 329F of the
Criminal Procedure Code.
•
The Judiciary should embark on effective and extensive public awareness programmes
to dispel misconceptions on the sentencing regime which contribute to the negative
perceptions.
•
Together with other stakeholders such as the Advisory Board on Criminal Psychiatric
Patients, the Advisory Committee on the Power of Mercy and the Ministry of Health
and the Judiciary should set in motion a review of the treatment of offenders with
mental illnesses. This review should inform law reform and establishment of supporting
mechanisms.
R ecommendations R elating to the D e partment of Probation and Aftercare Services
•
The Department of Probation and Aftercare Services should be adequately resourced to
ensure that officers are able to collect information effectively and on time as well as
effectively supervise the sentences.
•
Owing to the reliance on pre-sentence reports for critical information, the Department of
REPORT OF THE JUDICIAL TASKFORCE ON SENTENCING
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Probation and Aftercare Services must establish a mechanism to ensure that the reports
submitted are accurate and authentic.
6.3 6.4
•
At the national level, the Probation Orders Central Committee and the National Community
Service Orders Committee should consistently engage with the local case committees to
identify and address issues affecting the optimal operation of those orders.
•
The aftercare services for offenders released from prison should be designed and
implemented.
Recommendations Relating to the Kenya Prisons Services
•
Bearing in mind the anticipated reduction of the number of prisoners with the imposition
of more non-custodial orders, the Kenya Prisons Services should determine the ideal
capacity of the prisons and expand the facilities where necessary.
•
Borstal institutions for boys should be established in the different regions in the country
to avoid placing children in distant locations from their homes which makes it difficult
for parents and guardians to visit. Also, borstal institutions for girls should be established
to cater for cases in which the courts determine that custodial orders would be the most
appropriate. However, further research should be carried out with a view to establishing
the necessary and comprehensive reform related to custodial orders for children in conflict
with the law.
•
The rehabilitation programmes being offered in a few prisons should be rolled out in all
prisons to ensure that there is uniformity in the enforcement of custodial sentences. More
rehabilitation programmes should be tailor-made to address the root causes of criminality.
The Kenya Prisons Service should, therefore, be well-funded to facilitate this.
•
The Kenya Prisons Service should be mandated to issue remission of sentences as was the
case previously.
•
An audit should be conducted to assess the prison facilities and programmes with a view
to informing measures to be taken to reasonably accommodate persons with disabilities.
•
Further action needs to be taken to augment the ongoing efforts towards improving health
care in prisons.
•
The Kenya Prisons Service should invest in technology to ensure that detailed databases
of the offenders are maintained.
Recommendations Relating to the Kenya Police Service
•
18
The Kenya Police Service should maintain efficient and accurate records of offenders to
ensure that recidivists are not treated as first offenders. This will also ensure that those on
suspended sentences and those discharged conditionally serve the sentence for the original
offence. It is recommended that the institution invests in digital records to enhance
effectiveness in retrieval of information.
REPORT OF THE JUDICIAL TASKFORCE ON SENTENCING
•
6.5
6.6
The relevant police station must make the necessary arrangements to transfer children to
the borstal institution, which they have been committed to, as soon as possible, but in no
case should the transition period take more than fourteen days.
Recommendations Relating to the Office of the Director of Public Prosecution
•
Prosecutors should ensure that they obtain the offender’s accurate criminal record before
the sentencing stage.
•
Prosecutors should adequately inform the court of any legal provisions or considerations
which would impact on the sentence imposed.
Recommendations Relating to the National Council on the Administration of Justice
• The National Council on the Administration of Justice should consistently engage with the inter-agency local coordination forums and influence policy changes in different institutions within the criminal justice system.
6.7 Recommendations Relating to the National Legal Aid Programme
6.8
•
For offenders to mitigate properly, they require the assistance of an advocate. The
National Legal Aid Programme should be expanded for all offenders to benefit from
legal counsel.
•
Providing legal aid to children in conflict with the law should be prioritised.
•
Pressure towards the passing of the Legal Aid Bill should be enhanced.
Recommendations Relating to the Kenya Law Reform Commission
•
The sentencing guidelines should be anchored in law. The Criminal Procedure Code
should be revised to expressly mandate the Chief Justice to publish sentencing guidelines.
•
There is need to review and reform criminal law statutes, particularly in respect to the
punishments provided for different offences.
•
Extensive research should be carried out to establish the extent of injustices occasioned
by the minimum mandatory sentences imposed by the Sexual Offences Act. The findings
of the research should inform review of the Act.
•
The Criminal Procedure Code should be reviewed to make victim impact statements
compulsory.
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6.9
Recommendations Relating to the Ministry Of Health
•
The state of health care for persons with mental illnesses is wanting. There is need to
establish more centres to deal with these cases and to raise the standard of services offered
to such individuals.
•
Drugs and substance abuse rehabilitation centres remain few and unaffordable. More
centres should be established and the cost revised.
6.10 Recommendations Relating to the Treasury
20
•
The development of an effective sentencing regime is dependent upon the adequate funding
of the institutions in the criminal justice system.
•
In particular, the implementation of the Sentencing Policy Guidelines requires a robust
and effective administration of non-custodial sentences. The Department of Probation and
Aftercare Services is underfunded and should therefore be prioritised in the allocation of
more funds to meet its obligations.
•
The Kenya Prisons Service requires injection of more funds to meet the sentencing
objectives. The funding is particularly needed for improving infrastructure, developing
more and effective rehabilitation programmes and addressing the welfare of prison officers
whose conditions remain wanting.
REPORT OF THE JUDICIAL TASKFORCE ON SENTENCING
REPUBLIC OF KENYA
THE JUDICIARY
Supreme Court of Kenya,
City Hall Way,
P.O Box 30041 - 00100
Nairobi, Kenya
[email protected]
www.judiciary.go.ke
REPORT OF THE JUDICIAL TASKFORCE ON SENTENCING
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