‘SENTENCING IS NOT EXACT SCIENCE’

Recently, Malawi Supreme Court of Appeal Judge Edward Twea bemoaned that disparities that have existed in sentencing offenders is a result of absence of guidelines for magistrate and judges. Our Staff Reporter JOHN CHIRWA caught up with secretary for Malawi Law Society (MLS) Khumbo Bonzo Soko to find out more on the discrepancies in sentences and what should be done to resolve the problem.

: Having considered the debates, do you, as MLS, think there have been discrepancies in the manner in which sentences are given?

: The starting point must be that while sentencing should be based on sound principle, it is not an exact science. It involves a careful balancing of the interests of the offender, the victim and society at large. The implication of this is that a court, after a thoughtful and deliberative process, must impose a sentence that fits the peculiar factual circumstances of the case before it. Discrepancies, therefore, will be inevitable as no two cases are exactly the same. Take the offence of murder, for instance. One may have been committed in more aggravating circumstances, where, for instance, there was premeditation, than the next one. The convict in the other one may have been a young and first offender as opposed to a hardened and habitual criminal in the other. It must mean that all these mitigating and aggravating circumstances must be carefully considered by the court before a sentence is imposed. And so while it is important that sentencing trends be reasonably consistent, we must avoid a situation where sentencing becomes so straight-jacketed as to rob the one meting the sentence of any meaningful discretion.

: So do we need this debate?

: Robust debate in a democracy is something that should be cherished. While public mood should not necessarily inform a sentence that a court metes out, it is important for the credibility of the criminal justice system that the sentences that courts pass be fair to societal expectation.

: Why should Malawians be worried with discrepancies in sentencing with regards to justice delivery?

: Wide discrepancies in sentencing have the potential to undermine public confidence in the formal justice system. The impression that is created by such kind of discrepancies is that there are people who are treated more fairly by the system than others.

: How accountable are our magistrates and judges?

: The law creates systems for accountability of magistrates and judges. Most sentences imposed by magistrates are subject to an automatic confirmation process by the High Court. During this process, the High Court has got powers to vary the findings of the magistrate and to impose a different sentence. Inefficiencies in the system, however, which have been exacerbated by lack of adequate resources, have meant that for some prisoners, the High Court only gets to review their sentences after they have already served their time. There have also been numerous cases of missing court files leading to a total failure to review some sentences. The right to appeal to the High Court and the Supreme Court of Appeal is also part of the accountability mechanism.

: Justice Twea talks about the need to have a law to provide for sentencing in Malawi. Should we?

: To bring about some measure of consistency in the sentencing trends, it is indeed important that guidelines of sorts be given to the courts. We should, however, guard against eroding the discretion of courts in the sentencing process. It is important to remember that laws need to be responsive to the needs and aspirations of society. These things, however, are not immutable. They change with time. And that is why it is imperative that whatever system we design should merely be for purposes of offering guidance to the courts on what an appropriate sentence is in any given case. This will have the advantage of giving the Judiciary enough flexibility to pass sentences that reflect societal abhorrence for the criminal conduct in question.

: Our courts have also been blamed to be the cause of overcrowding in prisons. Some commentators say this is because the courts are obsessed with imprisonment as an option in meting out sentences at the expense of other options such as fines and community work. What do you say?

: The law provides enough flexibility when it comes to the options that a sentencing court has. Imprisonment is just one of the many options that a court has for dealing with convicts. For some inexplicable reason, however, we seem to have an unhealthy fixation with imprisonment as a country. The effect of this is that our prisons are full of people who should perhaps not be there. Of course, it would be irresponsible to avoid custodial sentences in deserving cases simply because we want to decongest prisons. The point, however, is that our courts should be more willing to deploy the other forms of punishment that the law provides. These include fines, community services and public work.

: How best, then, can we move forward?

: We are supportive of the legislative initiative to have sentencing guidelines provided that they indeed remain merely guidelines. We would also propose the creation of an institution within this same legislation to be responsible for reviewing these guidelines so that they remain fit for purpose. In the interim, it would be important to ensure that we improve on access to decisions of higher courts by magistrate’s courts where the overwhelming majority of criminal cases are tried. These decisions contain sentencing guidelines which would be extremely useful to magistrates if they were more efficiently disseminated.