Thursday, August 1, 2013


Access to Justice: NEW SENTENCING GUIDELINES A LITIMUS TEST FOR UGANDA’S JUDICIAL OFFICERS For some time now in Uganda, there is been a general public out-cry about the wide disparities in sentences passed by judicial officers against convicted persons. This has meant that the sentencing process doesn’t lead to justice for the victim, the accused and the public. Most sentences passed by judicial officials have ended up being open ended , unrealistic, inconsistent and left to the discretion of court. The public has hitherto had little or no direct in-put or participation in sentencing to allow court get the feeling of the community as regards the seriousness of the offence. And in order to address the disparities in sentences, the Judiciary has now developed sentencing guidelines the first of the kind in East Africa . The new sentencing guidelines according to Uganda’s Principal Judge Yorokamu Bamwine, were prepared under the instructions of the Chief Justice, Benjamin Odoki to provide principles and guidelines to be applied by courts in sentencing . For the start, there will be sentencing guidelines for 10 offences which include , murder, manslaughter, defilement, robbery , corruption related offences, obtaining money by false pretences, theft, criminal trespass, doing grievous bodily harm and assault. Mr. Bamwine explains that the development of the guidelines will continue to cover all offences under the Penal Code. With these new guidelines ,its our hope that we shall have sentences that are humane, predictable , uniform and effective. There is need to train all actors like the police, advocates, the probation and social welfare officers and the general public to under and participate in the process of finding the appropriate sentence for a convicted person. He said that with the guidelines in place, plea bargaining will be encouraged , courts will be deducting the period spent on remand and that suspects will be making informed decisions as to whether to plead guilty or not since the sentence ranges are pre-determined. Mr.Andrew Khaukha who is a member of the Sentencing Secretariat at the Judiciary, explains that the guidelines are guidance in the exercise of judicial discretion which judicial officers enjoy in the administration of justice and are by no means meant to fetter that discretion in any way because it (the discretion) is derived from the Constitution. Khaukkha says that the guidelines should, therefore, only be understood as ‘guidelines’ for judicial officers when assessing appropriate punishment to impose. Circumstances, nature of offence and a host of other factors will no doubt continue to influence the type of sentence handed out to convicted persons. Dr Katja Kerschbaumer the Senior Advisor on Good Governance (Danida) says that although sentencing is a duty that vests in the courts of law, it is a function that must be exercised with a full sense of responsibility and accountability. Therefore, if the judicial officers play their balancing act of determining what is right and wrong, justice will be seen to be done. Extreme leniency or severity of sentence cannot be in the interests of any society. This means, therefore, that a sentence of the court must, by and large, serve the interests of the community, befit the offence and give the offender his due desserts for doing that what right thinking members of society may frown upon. Chief Justice Odoki says that a sentence of the Court must neither be revengeful, nor be so excessive as to induce a sense of shock or be so lenient as to amount to sheer travesty of justice and must not be overly inappropriate. “judicial officers should always analytically consider all material facts with all care, and give full and clear reasons for any sentence imposed.,” he added . Odoki states that this practice is good for the sake of accountability to the public and also for the benefit of the offender. He further states that the public deserves protection of the courts against the criminal elements and therefore, punitive and robust sentences are justified for serious, heinous or cruel offences and that in deserving cases, petty offenders deserve appropriate sentences that reform them towards the righteous paths of law abiding citizens. In light of this , the issuance of the sentencing guidelines by the chief Justice under a practice direction as provided under Article 133 of the Constitution ,will lead to sentences not being arbitrary or solely intended to appease the victims Although the guidelines promote a consideration of all mitigating and aggravating circumstances, its impact on the victim and society should also be considered. The judiciary is now conducting numerous training sessions for judges, magistrates, advocates, prosecutors , police and probation officers on how to apply the new sentencing guidelines. The writer is an Advocate of the high Court. He is also a Media and Communications Consultant.