Chief Justice Martha Koome has released updated sentencing guidelines for Judges and Magistrates, specifically addressing cases involving the terminally ill, the elderly, those with chronic illnesses, and offenders with mental health conditions.
In the guidelines published on Friday, September 1, Chief Justice Koome emphasised that Judges tasked with cases involving offenders with disabilities should carefully assess whether the imposed sentence, taking into account the individual's illness or age, may be deemed excessively harsh.
She advised the Judges to consider two dimensions including, whether the illness or old age would cause the offender to experience undue and unjustifiable hardship in custody and whether the conditions in custody would be termed inhuman bearing in mind the offenders’ state.
"Secondly, whether the offender’s condition is one that would cause undue burden on other offenders and/or prison officers taking care of them," Koome advised.
Chief Justice Koome reminded Judicial officers that Article 57 of the Constitution affirms the right of older members of society to live in dignity.
"The sentence imposed on them must therefore not undermine this right," the guidelines read in parts.
Koome explained that other State departments had made significant progress to address such cases, and there is need for the Judiciary to review sentencing of sick people.
Other offenders with terminal illnesses such as those in need of chemotherapy for cancer treatment; hypertension; diabetes or other chronic illnesses, are not adequately catered for and face undue hardship while in custody.
"When imposing sentencing orders against terminally ill and elderly offenders, a court should ensure that the sentence imposed does not amount to an excessive punishment in view of the extent of illness and age, as well as in light of the offence committed," the guidelines read in parts.
In particular, Koome advised that the court should ensure that the sentence imposed does not amount to cruel, inhuman or degrading treatment in view of the extent of illness or age of the offender.
"The guidelines stated that non-custodial or suspended sentences should be considered unless, in light of the nature and seriousness of the offence committed and other factors, justice would demand the imposition of a custodial sentence," Koome advised.
The Chief Justice also observed that some accused persons may appear before the courts with varying degrees of mental illness.
"For the purposes of the Guidelines, there are three general categories, and they include mental illness that may amount to a legal defence under section 166 of the Criminal Procedure Code, and with application of the M’Naughten Rules.
"The second category is where mental illness that does not amount to a legal defence may nevertheless require consideration in determining the ability of an accused person to understand the proceedings against him." Koome stated.
The last category is where mental illness doesn’t fall into the above two categories may nevertheless impact the kind of sentence that the court should impose in determining a just and proportionate response to the crime committed.
The Chief Justice noted that it is important for the presiding Judge to make these distinctions when rendering sentences to mentally sick persons.
"For offenders suffering from a mental illness that amounts to defence, section 166 of the Criminal Procedure Code makes provision for where the court makes a finding of ‘guilty but insane’.
"Here, the law provides that the court must order the offender into custody whilst awaiting the President’s order. The court has the discretion as to the place and manner of custody during this period," Koome advised.
She observed that Under section 166 (3) of the Criminal Procedure Code, the President may then order that the person be detained in a mental hospital, prison or other suitable place.
In such circumstances, the order committing an offender with mental illness to safe custody is accompanied by a regular review mechanism.
The review is undertaken through the lens of the officer in charge of the institution keeping the offender in safe custody, with the first review coming three years after the initial committal and subsequently after every two years.
"Where improvement is noted in the follow-up evaluation of the offender, the same should be brought to the attention of the President for further appropriate orders including discharge where applicable.
"For accused persons who cannot understand the proceedings against them as a result of a mental illness, Section 167 of the Criminal Procedure Code makes provision for cases where the accused person cannot understand the proceedings against him," the advisory read in parts.
