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Order, certainty in new sentencing guide

The new guidelines on court judgments and sentences announced last week by Chief Justice Benjamin Odoki will strengthen delivery of justice through certainty and order, according to legal brains and members of the public.

“Disparities in sentencing had become so ridiculous and abnormal. One judge would give four years imprisonment and another gives 40 years for the same offence,” said Caleb Alaka, an advocate.
“These [guidelines] are one of the best things [Chief Justice Benjamin] Odoki has done for the judiciary”, Alaka added.

Following complaints about the disparities in sentencing, Odoki instituted a 25-member committee, headed by the Principal Judge, Yorokamu Bamwine, to look into the issue and suggest guidelines. The committee produced the guidelines in April, which were unveiled to the public on June 10.

Odoki told The Observer last week that the guidelines are meant to promote uniformity, consistency and transparency in the sentencing of offenders.

“These guidelines are very good for our criminal justice system because they create certainty and order in sentence. You see, for so long, there has been a disparity in perception on how magistrates and different judges arrive at a sentence, something which has always earned negative criticism for the judiciary, but with these guidelines, that will be no more”, Odoki said.

The guidelines take immediate effect. For offences where the maximum sentence is death, like murder, the new guidelines indicate the minimum sentence a judge can give to a convict is between 30 years to death.

This means the minimum sentence for capital offences like murder, kidnap, aggravated defilement, aggravated robbery, treason and terrorism, among others, is 30 years. For offences that attract a maximum sentence of life in prison, convicts can now be sentenced to three years to life. Life imprisonment also means that an offender has to spend all his entire natural life in prison.

The law normally defines criminal offences, and prescribes corresponding maximum penalties upon conviction but not the minimum. This meant that judicial officers enjoyed the discretion in sentencing as long as it was not severer than the maximum punishment.

However, even with the guidelines, Alaka says judicial officers still wield wide discretionary powers. He says the guidelines are meant to reduce the discretion of judicial officers. For instance, the minimum penalty for aggravated defilement is 30 years in jail, but judges still have the discretion to vary their sentencing as long as it is not less than the minimum.

“A few disparities will still exist, but at least there is a framework,” he adds.

Asuman Basalirwa, an advocate, believes the guidelines will create certainty in law.

“In order to have a good justice system, you need to have certainty in the laws, which these guidelines are meant to achieve,” Basalirwa said.

Death penalty

The guidelines discourage judicial officers against passing a death penalty, which is seen as a step towards abolishing the death penalty. Earlier on, the death penalty was mandatory for all capital offences.

However, in the case of Suzan Kigula Vs Attorney General, the Supreme court outlawed the mandatory death sentence. The death penalty became discretionary and judges have since refrained from sentencing offenders to death.

The guidelines now stress that judicial officers can only sentence suspects to death in “the rarest of the rare” cases, where the alternative of life imprisonment or other custodial sentence is demonstrably inadequate.

According to Order 18, the “rarest of the rare’’ cases include cases where court is satisfied that the commission of the offence was planned or meticulously premeditated and executed, or where the victim was either a law enforcement officer or a public officer killed during the performance of his or her functions.

Other “rarest of the rare” circumstances include situations where a person killed was supposed to give evidence in court or where the victim was killed in the act of human sacrifice.

Factors

Order 14 provides for the factors that court has to take into account while passing a sentence. These factors include the offender’s state of mind, how the offence committed impacts on the community, and the background against which the alleged offence was committed, among others.

“Court shall deduct the period spent on remand from the sentence considered appropriate after all factors have been taken into account,” reads the guidelines in part.

The sentencing options include the death penalty, life imprisonment, imprisonment for a specified period of time, a fine, community service, probation, a caution and discharge without punishment, or any other lawful sentence option.

Besides, the court may make an order for conditional discharge, costs, compensation, restitution, forfeiture, or any other lawful sentencing order.

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© 2016 Observer Media Ltd