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Author Topic: Need for a guideline on sentencing in Kenya
Posts: 12
Post Need for a guideline on sentencing in Kenya
on: February 8, 2012, 16:01

Kenya is overdue for a comprehensive policy and guideline on sentencing. A good reference work and also a guide on the topics and mini-topics under the subject matter would be: Andrew Ashworth, Law in Context: Sentencing & Criminal Justice, 5th Edn. Cambridge: New York

• Glossary of Terms and Definitions
• In introduction to Sentencing in Commonwealth and in Kenya
• Theories & Philosophies of Sentencing from Criminology and Penology
• Courts and Crimes
• The available sentences
• The General Statistical Background
• The Criminal Process
• The formal sources of sentencing decisions

• Sentencing and the Constitution
• The separation of powers and sentencing
• The Right to fair trial and sentencing
• The Prerogative of Mercy
• Sentencing and Human Rights
• Sentencing aims, principles and policies
• The aims of the Criminal Justice System
• Justifying state punishment
• The rationales for sentencing
• Some principles and Policies

• Elements of Proportionality
• The proportionality principle
• Opinions about the gravity of the offence
• Developing parameters of ordinal proportionality

• Aggravation and Mitigation
• Aggravation as increased gravity
• Victim Impact statements
• Mitigation as diminished gravity
• Personal mitigation
• Mitigation and aggravation in practice
• Case studies, precedents

• Persistence, Prevention and Prediction
• Approaches to punishing persistence
• Previous convictions and the law
• Persistent petty offenders
• Minimum and Maximum Sentences
• Dangerous Offenders

• Equality before the law
• The principle and its challengers
• Race
• Gender
• Employment Status
• Financial Circumstances
• Social Status
• Young offenders
• Mentally disordered patients
• Equality, parsimony and risk

Multiple Offenders
• Charging the multiple offender
• Concurrent and consecutive sentences
• Multiple Offenders, proportionality and guidelines

Types of Sentences
• Custodial Sentencing
• The state of prisons
• The use of imprisonment
• Principles for the Use of Custodial Sentences
• The Custody threshold: Short custodial sentences and suspended custodial sentences
• Determinate custodial sentences
• Indeterminate custodial sentences
o Life imprisonment
o Detention at the pleasure of the president
• Demographic Features of the Prison Population

Non-custodial sentencing
• Binding over
• Absolute Discharge
• Conditional Discharge
• Fine
• Community Service Order
• Curfew Order
• Police Supervision
• Orders under mental health legislation
• Deferment of sentence
• Probation
• Corporal punishment (Abollished)
• …..
• Capital punishment/death penalty

Procedural issues and ancillary orders
• The statutory sentencing framework
• Ancillary orders
• The Obligations to give reasons for sentence
• The factual basis for sentencing
• Police antecedent statements
• The role of the prosecution
• Pre-sentence reports
• Mitigation
• The role of the victim
• Victim impact statement
• Restitution

• Conclusions
• The responsibility of sentencing
• Rungs on the penal ladder
• Delivering change: creating a guideline
• Proportionality of Sentence and Social Justice
• Future directions

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'WakiliShare' is a forum and blog established by the National Council for Law Reporting (Kenya).

The name 'WakiliShare' is a conjoined term involving three words: Wakili – which is Swahili for 'lawyer' or 'attorney', 'wakilisha', which is Swahili for 'to represent', and 'share', an English term meaning to 'jointly use, participate in, enjoy or receive'.
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