Key principles underpinning sentencing
Part One of the framework described above outlines the six major principles that should underpin all sentencing. The first is the principle of proportionality. Whereas proportionality in some jurisdictions may mean setting the maximum sentence only, Section 3 of the Kenyan Sentencing Guidelines requires proportionality to determine both the upper and lower limits of the sentence in relation to serious cases such as murder, defilement, and robbery with violence. It states that ‘the sentence meted out must be proportionate to the offending behaviour’ and that ‘the punishment must not be more or less than is merited in view of the gravity of the offence’. Under Section 23.8, the gravity is assessed against aggravating and mitigating circumstances that relate to the harm caused or risked and the culpability of the offender. The Guidelines state that ‘the proportionality of the sentence to the offending behaviour is weighed in view of the actual, foreseeable and intended impact of the offence as well as the responsibility of the offender’.
The aforementioned provision for personal responsibility may, however, conflict with the next principle outlined in the Guidelines that calls for the imposition of ‘the same sentence for the same offences committed by offenders in similar circumstances’ in pursuit of uniformity, equality, parity, and consistency before the law. The third principle provides for transparency and accountability and states that ‘the reasons and considerations leading to the sentence should be clearly set out and in accordance with the law and the sentencing principles laid out in these Guidelines’ pursuant to Article 50 and Article 73(2)(d) of the Kenyan Constitution 2010. This is followed by the principle of inclusiveness which provides that ‘both the offender and the victim should participate in and inform the sentencing process’ as provided for under Article 10(2) which again, may conflict with proportionality.
The fifth principle provides for fundamental freedoms and respect for human rights. The Guidelines specifically urge the courts to uphold the dignity of both the victim and the offender during the sentencing process in order to foster wider enjoyment of human rights. It pays attention to the impact of sentencing on the reduction of crime and warns of the high recidivism rate associated with custodial sentences. It calls upon courts to favour sentences that promote the rehabilitation of the offender. To this end, the court should be guided by the provisions of Article 159(c) of the Kenyan Constitution, which provides for alternative forms of dispute resolution so long as they are not repugnant to justice and morality. The court may also encourage other measures such as reconciliation, restorative justice, and restitution in pursuit of a non-custodial sentence.
Lastly, the Guidelines require adherence to domestic standards of sentencing as well as international law granted the force of law by Section 2(6) of the Kenyan Constitution 2010. The Guidelines further state that Kenyan courts are expected to make reference to Guidelines established by the sentencing standards and principles from other jurisdictions. Whilst these standards and principles are not binding under Kenyan law, the courts are expected to give them due consideration when appropriate.
-  2 Kenyan Sentencing Guidelines (2016), Part One Section 3(1). 3 Kenyan Sentencing Guidelines (2016), Part One Section 3(1). 4 Kenyan Sentencing Guidelines (2016), Part One Section 3(2). 5 Kenyan Sentencing Guidelines (2016), Part One Section 3(3). 6 Kenyan Sentencing Guidelines (2016), Part One Section 3(4). 7 Article 10(2)(b) identifies inclusiveness as one of the national values and principles of the government.
-  Kenyan Sentencing Guidelines (2016), Part One Section 3(5). 2 Kenyan Sentencing Guidelines (2016), Part One Section 3(5). 3 Kenyan Constitution Article 159(C) provides that ‘alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted’ but the same ‘shall not be used in ways that contravene the Bill of Rights, is repugnant to justice and morality or is inconsistent with the Constitution or any other written law'. 4 Kenyan Constitution Article 159(C). 5 Kenyan Sentencing Guidelines (2016), Part One Section 3(6). 6 Kenyan Sentencing Guidelines (2016), Part One Section 3(6). 7 The Article provides that any treaty or convention ratified by Kenya shall form part of the laws of Kenya. 8 These include the African Charter on the Rights and Welfare of the Child, Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment, African Union Principles and Guidelines on Rights to a Fair Trial and Legal Assistance in Africa, United Nations Rule for Treatment of Women Prisoners and Non-Custodial Measures for Women Offenders, United Nations Standard Minimum Rules for Non-Custodial Measure, Standard Minimum Rules for Treatment of Prisoners, and Guidelines for Action on Children in the Criminal Justice System, among others.