The courts are guided by the Sentencing Policy Guidelines of 2023.
My brother was jailed for five years after being convicted of burglary and assault. Are you able to run us through what judges and magistrates look at when convicting or acquitting suspects?
Dear Younger Brother,
Every law is designed to foster respectful relationships between individuals and their connections to institutions, aiming to create an environment where human rights, needs, and interests are balanced by justice.
Crime, regardless of the jurisdiction, is seen not just as an offense against individuals but as an affliction to the state; hence, all criminal cases are framed as the Republic versus the accused individual. The Constitution provides several provisions that guide the conviction or acquittal of any suspect.
Fundamentally, courts play a critical role in the judiciary and are governed by Article 10, along with Article 71 (1) (a) (iii & iv), which articulates national values and principles of good governance. These articles bind state officers to promote the sanctity and dignity of public offices, and the judiciary is one of those.
Article 10, Clause 1 (a), emphasises patriotism, national unity, the sharing and devolution of power, the rule of law, democracy, and public participation. Additionally, paragraph (b) highlights the importance of human dignity, equity, social justice, equality, human rights, non-discrimination, and the protection of marginalised groups. Finally, paragraph (c) underscores the necessity of integrity, accountability, and transparency. The court’s decision to acquit or convict must fundamentally be rooted in its fidelity to the Constitution.
Care and fairness
The position of a judge on whether to acquit or convict can vary depending on their philosophical beliefs and guiding principles of jurisprudence. It is crucial to remember that both the accused and the victim are equal before the law, as outlined in Article 27 of the Constitution.
They must be treated with care and fairness, reflecting the inherent dignity and justice emphasised in Articles 28 and 48. However, when considering human dignity and justice in the context of acquittals or convictions, the court must adhere to the principle of a fair trial as stated in Article 50.
In every case, regardless of the severity of the offense, the strength of evidence plays a critical role. According to the law of evidence, any criminal matter must meet two essential standards. The first is the standard of proof, which in criminal law requires evidence that creates a doubt-free conclusion for the judge, the victim, the accused, and the public that a crime was committed beyond a reasonable doubt.
This legal threshold was comprehensively canvassed through the orbiter dicta of the recent appeal of Christine Nthenya vs. Republic, criminal Appeal E060 of 2023, whose judgment was read on the 24th of October 2024. This requirement is specified in the Criminal Procedure Code and the Evidence Act, among other laws.
Crime, regardless of the jurisdiction, is seen not just as an offense against individuals but as an affliction to the state
The second standard is that the person alleging a crime has the right to prove their claim. The Court’s responsibility is to evaluate the strength of the evidence presented. This evaluation involves considering two additional principles: the reliability and credibility of the evidence. Thus, witnesses providing evidence must be credible, and their statements should corroborate the facts presented in Court.
Even though the previously mentioned guideposts are emphasised, each crime has a prescribed sentence in the Penal Code and in some specialised statutes within the Kenyan legal system. For burglary and related offenses, Sections 303, 304, and 250 along with Section 24 of the Penal Code, state that such offenses can attract a maximum sentence of ten years.
The question we need to address is why your brother received only five years. Several factors may influence this outcome. First, did the court consider the mitigating circumstances presented by your brother?
Such circumstances could include an accepted plea bargain agreement, which is often viewed as a demonstration of good faith and helps save the court’s time. Additionally, could the judge have factored in the days he spent in custody before the conviction? The Criminal Procedure Code indicates this in Section 333 (2).
At this stage, the judge or magistrate decides based on the principle of justice, which must adhere strictly to the law. Two critical elements come into play: the court’s discretion and independence to make a decision proportionate to the crime committed, and the ability to refer to established precedents.
Despite the flexibility offered by various local, regional, and international legal frameworks, the courts are guided by the Sentencing Policy Guidelines of 2023.
These guidelines emphasise several principles: proportionality, equality, consistency, impartiality, respect for human rights, and the totality of the sentence. Ultimately, these principles should promote deterrence, retribution, reconciliation, community protection, and rehabilitation, among other objectives.
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