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Opening remarks by Chief Justice Luke Malaba on the occassion of the training of magistrates on Criminal Prodcedure (Sentencing Guidelines) SI 146 of 2023 held on 18- 22 September in Bulawayo
Distinguished guests, ladies and gentlemen, it is a pleasure to open the training exercise for magistrates on Sentencing Guidelines. The recently promulgated Criminal Procedure and Evidence (Sentencing Guidelines) Regulations, 2023 informs the core business of the gathering.
The gazetted Statutory Instrument is the culmination of an extensive and scientific process that was spearheaded by the Judicial Conference Council on Sentencing Guidelines. The central purpose of the Sentencing Guidelines when formulated was to eliminate unacceptable disparity when the courts of justice mete out sentences for proven criminal conduct.
However, in recognition of the inevitable logic that the effectiveness of the law is dependent on the quality of the drivers of the process, the objective of the training exercise is to equip magistrates with the necessary skills to effectively utilise the sentencing Guidelines. These judicial officers are a key component of the Judiciary as they deal with the bulk of criminal matters, save for those which involve treason, murder or any other offence for which the death sentence would be applicable. Magistrates are effectively the bedrock of the criminal justice system.
Therefore, the training exercise serves to extend the focus of the primary users of the sentencing guidelines. Magistrates must be alive to the value of the discussions throughout the day that aim to conscientise them on the appropriate use of the Sentencing Guidelines.
THE CORRELATION BETWEEN THE TRAINING EXERCISE AND THE PRESENT LEGAL YEAR THEME
It would be remiss not to point out that there is a connection between the stated objective of the training exercise and the theme for the present Legal Year. As indicated earlier, the focus of the programme is to educate and inform magistrates about the applicability and the operation of the sentencing guidelines. This complements the agenda of the Judicial Service Commission which, at the beginning of the legal year, undertook to promote competence and quality service in order to enhance public confidence in the Judiciary. The theme has guided the operations throughout the year, where several conferences, workshops and training programmes have been held to capacitate Judges, judicial officers, court staff and support services staff with the necessary competencies and skills to execute their respective functions.
As such, it is pleasing to note that as the final term of the legal year gets underway, the commitment to the pledge to the public made at the beginning of the year remains unwavering. The acknowledgement of the highlighted connection between the programme at hand and the theme for the Legal Year must inspire active participation from all magistrates. The training exercise is part of the Judiciary’s broader goal of enhancing public confidence through competence and quality of service. It is, therefore, incumbent upon all magistrates to ensure that they can perform according to the requirements of the procedures and the acts prescribed by the Sentencing Guidelines. Accordingly, magistrates must be driven and passionate about assimilating the concepts and principles of sentencing to be discussed today.
THE IMPLEMENTATION OF SECTION 334A OF THE CRIMINAL PROCEDURE AND EVIDENCE ACT
To begin with, it is necessary to set out that the Judiciary is now in the implementation phase of the vision that informed section 334A of the Criminal Procedure and Evidence Act (Chapter 9: 07). Therefore, it is critical that all magistrates understand the underlying principles that inspired the legislative provision. The promulgation of the sentencing guidelines that were developed by the Judicial Conference Council means that there is now a legal reference for Judges and magistrates alike when it comes to the topical issue of sentencing.
Section 334A(6) of the Criminal Procedure and Evidence Act provides that:
“(6) In formulating draft sentencing guidelines, a judicial conference shall pay regard to —
(a) the need to promote consistency in sentencing; and
(b) the impact of sentencing decisions on offenders and their families as well as on victims of offences; and
(c) the need to promote public confidence in the criminal justice system; and
(d) the cost of different sentences and their relative effectiveness in rehabilitating offenders and reducing crime.”
Thus, the Sentencing Guidelines mark a departure from the previous regime where magistrates generally exercised their discretion regarding sentencing convicted persons. The discretion, though exercised subject to judicious considerations, was often affected by the variance in the ideology and the personal convictions of the relevant judicial officers. This resulted in disparate sentencing for similar criminal conduct due to the absence of codified guidelines that informed the objectivity of the process.
Magistrates in particular must now adjust to the implemented legal guidelines when it comes to the Judiciary’s transition to a guided sentencing regime. Therefore, the training exercise aims to fast-track the adjustment phase for magistrates by breaking down what the sentencing guidelines mean and the importance of adhering to them. Notwithstanding, it is necessary to clarify that the guidelines also apply with equal force in the Supreme Court, the High Court and any other court specified in terms of statute in addition to the magistrates court.
THE IMPORTANCE OF SENTENCING IN THE CRIMINAL JUSTICE SYSTEM
For one to appreciate the significance of the Sentencing Guidelines, due recognition must be given to the importance of the mechanism of sentencing in criminal justice. There must be awareness of what lies at the core of sentencing and what the process seeks to achieve and enforce in society. The American view perhaps captures best the complexities associated with sentencing that often result in disparate sentences. It is said that:
“The sentencing decision is the symbolic keystone of the criminal justice system: in it, the conflicts between the goals of equal justice under the law and individualised justice with punishment tailored to the offender are played out, and society’s moral principles and highest values – life and liberty – are interpreted and applied.”
The above excerpt demonstrates unequivocally that, although being the exclusive domain of those vested with judicial authority, sentencing is a multi-faceted process whose meaning varies depending on the viewpoint of the observer or the participant in the court proceedings.
From a judicial perspective, sentencing is an appropriate exercise of the rule of law. The convicted person must be held accountable for his or her criminal conduct which violates the letter of the law. To the victim or affected persons, sentencing must reflect retribution or restitution for the harm suffered. To the greater public and society, sentencing must act as an effective deterrent for those who seek to violate the social order. Lastly, to the convicted person, sentencing should facilitate reformation or at the very least provide equal treatment for the same illegal conduct or misdemeanour.
These inherent contradictions under sentencing reveal that the process is a crucial component of the Judiciary’s responsibility to society. No keener exercise of judicial authority can be visited upon society due to the diverse interests in the expected outcome other than the sentencing process due to the diverse interests in the expected outcome of the sentencing process. No other branch of the Judiciary’s mandate has greater potential to undermine public support for the administration of criminal justice by magistrates.
Indeed, past criticism regarding criminal matters handled by the magistrates court has been heavily centred on the sentencing stage. In contrast, there is generally limited focus or scrutiny devoted to the conviction stage of criminal matters. It is these underlying considerations that necessitated the implementation of sentencing guidelines.
It is envisioned that, once effectively utilised, the aforesaid guidelines will increase public confidence in the Judiciary’s sentencing regime.
SIGNIFICANCE OF THE SENTENCING GUIDELINES TO MAGISTRATES
Nevertheless, the promulgation of any legislation that is viewed as a limitation of judicial discretion is generally met with consternation and suspicion. To the uninitiated, the sentencing guidelines are an intrusion into the independence of the bench. However, as was stated on the occasion of the Judicial Conference on sentencing guidelines:
“… the sentencing guidelines themselves, when appropriately defined, relate to a means to guide judicial discretion in accomplishing a particular sentencing. They do not take away the judicial discretion of the judicial officer because it is intrinsically tied to the independence of his or her office but merely ensure that it is exercised within reasonable parameters. In this form, the sentencing guidelines have a descriptive form as opposed to a prescriptive form that may fail to take into account the specific circumstances of each case. They serve to ensure that there is proportionality and uniformity regarding the application of the sentencing procedures available to the courts.”
This has since been buttressed by section 5 of the Criminal Procedure and Evidence (Sentencing Guidelines) Regulations, 2023 which provides that:
“Binding nature of guidelines on judicial officers
- (1) Where these guidelines have provided for a presumptive penalty, the courts shall pay due regard to the applicable sentencing guidelines when sentencing offenders.
(2) Where a sentencing court departs from a prescribed presumptive penalty as provided for in these guidelines it shall give reasons for that departure.”
The meaning of the aforementioned provision is that magistrates are now mandated to pay due regard to the Sentencing Guidelines when exercising their judicial discretion. It is also evident that magistrates are not restricted from departing from the established presumptive penalties for specific criminal conduct. Rather, they are mandated to provide reasons for departing from them in special and warranted circumstances.
The accountability function of the sentencing guidelines enhances public confidence when magistrates provide cogent reasons for departing from expected sentences. Normally, the deviation from the norm in sentencing is experienced in matters that capture national and public interest. Thus, the obligation reflects favourably upon the transparency of the decision-making process, whose outcome brings influence on the freedom and liberty of convicted persons.
In addition, it is also imperative that magistrates are cognisant that the sentencing guidelines are not a departure from the classical principles of criminal justice. The sentencing guidelines still embrace the traditional principles of reformation, retribution, deterrence, protection and restitution. However, the sentencing guidelines aim to ensure that the presiding magistrate does not place undue emphasis on a single objective of sentencing, which is normally the basis of variance in sentencing.
Emphasis has been placed on restorative and transformative justice that accords with constitutional values. It is for this reason that sentences imposed in line with the gentencing guidelines must reflect proportionality, parity and totality. The codification of the sentencing guidelines is meant to facilitate a just outcome for those affected by criminal justice.
THEMATIC CONCERNS OF THE TRAINING PROGRAMME FOR MAGISTRATES
As indicated earlier, magistrates are the primary drivers of the sentencing guidelines, as they deal with the vast majority of criminal convictions in the country. Accordingly, the activities that inform the training exercise will impart guidance and knowledge on the background, navigation and appropriate usage of the sentencing guidelines.
The presentations will provide a detailed account of the conceptual framework of the sentencing guidelines, and a breakdown of the foundation and navigation of the established presumptive penalties. The panel of seasoned experts in the criminal justice sector will also provide an illustration of the sentencing and judgment procedure as detailed in the sentencing guidelines. The activities on the agenda are the product of a thought process meant to equip magistrates with the necessary skills to implement the Sentencing Guidelines. The presentations will comprehensively cover every stage of the sentencing process that is regulated by the Sentencing Guidelines.
ACKNOWLEDGEMENT OF STAKEHOLDERS
However, before the proceedings commence, it is important to acknowledge the work of the Judicial Conference Council on Sentencing Guidelines in facilitating the promulgation of the aforesaid Sentencing Guidelines. It has capably delivered on the objectives under the leadership of the chairperson, the Honourable Mrs Justice Makarau.
The support of our partners UNICEF in hosting the training exercise for magistrates also deserves special mention. Your continued support in facilitating the effective administration of criminal justice is appreciated.
Lastly, the Judicial Training Institute of Zimbabwe, under the stewardship of the Judicial Service Commission, must be applauded for handling the preparation for the event.
The members of staff of the Judicial Service Secretariat are also thanked for their dedication and commitment to duty in organising the judicial workshop.
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