Judge bemoans sentencing disparities
Malawi Supreme Court of Appeal judge Edward Twea said yesterday disparities which have existed in sentencing offenders is a result of the absence of a law spelling out guidelines for magistrates and judges.
Speaking in Lilongwe yesterday, Twea, who is chairperson of the Special Law Commission on the development of legislation on sentencing guidelines, said such disparities had resulted in the sentencing process being mystical and unpredictable.
The Special Law Commission held its first regional consultation with Central Region prosecutors, magistrates and members of the police and prison services to deliver its tentative findings.
Twea said the commission found that there was a general feeling that the process of sentencing is at the discretion of a magistrate or judge because rules that determine sentencing not visible to the public.
He said: “A law will reduce disparities in sentencing. Not that in Mulanje or Thyolo there are different sentences imposed on similar offence. People should be able to understand why a magistrate or judge arrived at sentencing.”
Twea said much as people are different and the differences are encouraged, people should be able to know what has happened for a sentence to be imposed on an offender such as guidelines, mitigating and aggravating factors and possibility of parole.
In his paper on sentencing principles, the judge said these are not provided for under a relevant law but have been developed by the courts.
But Twea said the guidelines were merely administrative and arrived at by judges to inform fellow judicial officers and magistrates.
Currently, traditional principles of sentencing are that a sentence should be proportional to the gravity of the offence and that when one is found guilty of more than one sentence, they should run one after the other but proportional to the offence.
Twea also said traditionally, maximum sentences and imprisonment are for worst cases or offences of murder, rape and armed robbery.
But he asked the participants whether these principles were sufficient and that maximum sentence should be reserved for worst crimes only.
In its findings, the Special Law Commission found that Malawi has no specific legislation which provides for purposes of sentencing but those which are considered include deterrence, retribution, incapacitation, rehabilitation and restitution.
On the current sentence process, the commission found that there’s no proper pre-sentence hearing and no specific time period between conviction and sentencing.
