The text book on the English legal system I used as a first year student 60 years ago commented that a spectator would be impressed by the care that goes into a criminal trial – provided one left before the sentencing stage.

This reflects the complexity of the issue. A person has been found to have committed a crime. They have done something, and almost certainly intentionally, or at least carelessly. But then the court has to decide what to do with them.

What sort of mental state did they have at the time? What motive did they have? Do they have a record of doing similar things? What have been the impacts of their action? Who were the victims – including whether these were particularly vulnerable? Have the accused shown any regret for what they did? Have they in the past been a responsible citizen? What is their state of health now? What will be the impact on other people (perhaps children) of the possible sentences?

The law says what the possible sentences are, but this may leave a wide range of choices for the court. An Act of Parliament may say, for example, that the punishment is 20 years in prison. This is understood to mean a maximum of 20 years (unless the Act says it is a minimum or even a fixed term).

The usual wording or understanding – a maximum of, say, 20 years – means anything between zero and 20 years in prison. Very probably the same law says the punishment may be a fine – a money payment – of up to a certain amount, instead of prison or in addition.

Other possibilities include community service, a probation order, a suspended sentence (the person will not serve the sentence unless they commit another crime), or compensating the victim or some specific order relevant to the particular crime, like losing a licence.

Influences on the court

There are at least four other types of influence on the court’s decision (or ought to be). First is the existence of previous court decisions involving similar offences and factors that should influence later courts’ decisions.

Second is a set of guidelines, revised in 2023, from the National Council on the Administration of Justice. This document you might say is a compilation of common sense.

It also sets out the traditional purposes of punishment: retribution (making the punishment fit the crime), deterring the person from re-offending, deterring other people from committing similar offences, “rehabilitation” (helping the offender to change their ways), restorative justice (somehow compensating victims and society), disabling the person from committing offences in future (most often by locking them up), denunciation (the court as the voice of society condemning what happened), reconciliation (improving the relationship between the offender and the victims and society), reintegration (bringing the offender back into society).

Third, I suggest, is – or should be – some level of understanding of the nature of criminal punishment, including some realism about what it can achieve. Justice Aburili said, “the regrettable thing is that there is no empirical evidence that harsher or longer sentences reform offenders or deter the would-be offenders.

If that were to be the case, then people would not be murdering others since punishment for murder is death. Similarly, we would not have nearly 95 per cent of convicts and therefore, inmates being sexual predators. Reformation depends on an individual’s will to change behaviour.”

Something else the Judiciary should be aware of, it seemed to me, is the realities of the system in Kenya. Apparently the Maraga report said of the prisons, “The picture that has emerged is one of an appalling service characterised by overcrowding, rottenness, omission and commission, looting, grabbing, lethargy, indiscipline, diseases, squalor, ineptitude, and modern-day slavery”. 

It is only right to say that the Prisons Services has plans for major improvement. Its  Modernisation Strategy (2026-35) “provides a comprehensive framework for transforming the service into a modern, secure, humane, and rehabilitative correctional institution capable of meeting constitutional obligations and national development priorities.

The strategy responds to persistent and emerging challenges including overcrowding, ageing infrastructure, operational inefficiencies, limited use of technology, skills gaps, and constrained rehabilitation and reintegration outcomes.”

While some people are able to benefit from imprisonment, by studying or learning new skills, that quote from the Maraga report made me wonder how far the Judiciary actually thinks about what they are sentencing people to. Just as I wonder what they think happens when they sentence someone to death – which later will definitely be changed to life imprisonment.

The text book on the English legal system I used as a first year student 60 years ago commented that a spectator would be impressed by the care that goes into a criminal trial – provided one left before the sentencing stage.

This reflects the complexity of the issue. A person has been found to have committed a crime. They have done something, and almost certainly intentionally, or at least carelessly. But then the court has to decide what to do with them.

What sort of mental state did they have at the time? What motive did they have? Do they have a record of doing similar things? What have been the impacts of their action? Who were the victims – including whether these were particularly vulnerable? Have the accused shown any regret for what they did? Have they in the past been a responsible citizen? What is their state of health now? What will be the impact on other people (perhaps children) of the possible sentences?

The law says what the possible sentences are, but this may leave a wide range of choices for the court. An Act of Parliament may say, for example, that the punishment is 20 years in prison. This is understood to mean a maximum of 20 years (unless the Act says it is a minimum or even a fixed term).

The usual wording or understanding – a maximum of, say, 20 years – means anything between zero and 20 years in prison. Very probably the same law says the punishment may be a fine – a money payment – of up to a certain amount, instead of prison or in addition.

Other possibilities include community service, a probation order, a suspended sentence (the person will not serve the sentence unless they commit another crime), or compensating the victim or some specific order relevant to the particular crime, like losing a licence.

Influences on the court

There are at least four other types of influence on the court’s decision (or ought to be). First is the existence of previous court decisions involving similar offences and factors that should influence later courts’ decisions.

Second is a set of guidelines, revised in 2023, from the National Council on the Administration of Justice. This document you might say is a compilation of common sense.

It also sets out the traditional purposes of punishment: retribution (making the punishment fit the crime), deterring the person from re-offending, deterring other people from committing similar offences, “rehabilitation” (helping the offender to change their ways), restorative justice (somehow compensating victims and society), disabling the person from committing offences in future (most often by locking them up), denunciation (the court as the voice of society condemning what happened), reconciliation (improving the relationship between the offender and the victims and society), reintegration (bringing the offender back into society).

Third, I suggest, is – or should be – some level of understanding of the nature of criminal punishment, including some realism about what it can achieve. Justice Aburili said, “the regrettable thing is that there is no empirical evidence that harsher or longer sentences reform offenders or deter the would-be offenders.

If that were to be the case, then people would not be murdering others since punishment for murder is death. Similarly, we would not have nearly 95 per cent of convicts and therefore, inmates being sexual predators. Reformation depends on an individual’s will to change behaviour.”

Something else the Judiciary should be aware of, it seemed to me, is the realities of the system in Kenya. Apparently the Maraga report said of the prisons, “The picture that has emerged is one of an appalling service characterised by overcrowding, rottenness, omission and commission, looting, grabbing, lethargy, indiscipline, diseases, squalor, ineptitude, and modern-day slavery”. 

It is only right to say that the Prisons Services has plans for major improvement. Its  Modernisation Strategy (2026-35) “provides a comprehensive framework for transforming the service into a modern, secure, humane, and rehabilitative correctional institution capable of meeting constitutional obligations and national development priorities.

The strategy responds to persistent and emerging challenges including overcrowding, ageing infrastructure, operational inefficiencies, limited use of technology, skills gaps, and constrained rehabilitation and reintegration outcomes.”

While some people are able to benefit from imprisonment, by studying or learning new skills, that quote from the Maraga report made me wonder how far the Judiciary actually thinks about what they are sentencing people to. Just as I wonder what they think happens when they sentence someone to death – which later will definitely be changed to life imprisonment. That is the role of previous court decisions and the guidance. One thing I suggest is that one must not be able to buy oneself out from punishment. A larger fine than usual, or a “generous” offering to victims should not be used to escape imprisonment if that is the appropriate sentence.

Various Kenyan courts have made efforts to make the sentencing system more humane. Next week I plan to look at some of those cases.

This article was first published by The Star Newspaper

Image: FILE