CJ Koome’s Fresh Rules for Jailing Sick & Elderly Offenders
Chief Justice Martha Koome has issued revised sentencing guidelines for Judges and Magistrates, addressing specific cases involving the terminally unwell, the elderly, those with chronic illnesses, and offenders with mental health issues.
In the guidelines published on Friday, September 1, Chief Justice Koome emphasized that judges assigned to cases involving offenders with disabilities should carefully evaluate whether the imposed sentence, taking into consideration the offender’s age or illness, may be deemed excessively harsh.
She advised the Judges to consider two factors, namely, whether the offender’s illness or old age would subject him to undue and unjustifiable hardship in confinement and whether the prison conditions would be deemed inhuman in light of the offender’s condition.
Koome advised, “Second, whether the offender’s condition would place an undue burden on other inmates and/or prison staff who care for them.”
Article 57 of the Constitution affirms the right of elder members of society to live with dignity, as Chief Justice Koome reminded Judicial officers.
“Therefore, the sentence imposed on them must not violate this right,” the guidelines state in part.
Koome explained that other State departments had made significant progress in addressing these cases and that the Judiciary must review the sentencing of ill individuals.
Other offenders with terminal illnesses, such as those requiring chemotherapy for cancer treatment, hypertension, diabetes, or other chronic illnesses, are not adequately accommodated and are subjected to undue hardship while in custody.
Parts of the guidelines state, “When imposing sentencing orders against terminally ill and elderly offenders, a court should ensure that the sentence imposed does not constitute an excessive punishment in light of the severity of illness and age, as well as the nature of the offense committed.”
In particular, Koome advised the court to ensure that the sentence inflicted does not constitute cruel, inhuman, or degrading treatment due to the severity of the offender’s illness or his age.
“The guidelines stated that non-custodial or suspended sentences should be considered unless, based on the nature and severity of the offense and other factors, justice requires the imposition of a custodial sentence,” Koome advised.
Additionally, the Chief Justice noted that some defendants may appear in court with differing degrees of mental illness.
“There are three general categories for the Guidelines, including mental illness that may constitute a legal defense under section 166 of the Criminal Procedure Code and with the application of the M’Naughten Rules.
“In the second category, mental illness that does not constitute a legal defense may still need to be considered when determining an accused person’s capacity to comprehend the proceedings against him.” Koome declared.
In the final category, a mental disorder that does not fall into the first two categories may still influence the type of sentence the court should impose in determining a just and proportional response to the crime committed.
The Chief Justice emphasized that the presiding judge must make these distinctions when imposing sentences on mentally ill defendants.
“By section 166 of the Criminal Procedure Code, the court may find a defendant ‘guilty but insane’ if he or she suffers from a mental disorder that constitutes a defense.
“In this instance, the law requires the court to place the offender in detention pending the President’s order. Koome advised that the court has discretion over the place and mode of custody during this period.
She noted that under subsection (3) of section 166 of the Criminal Procedure Code, the President may then order the detention of the individual in a mental hospital, prison, or other appropriate location.
In such situations, the order placing a mentally ill offender in secure detention is accompanied by a regular review mechanism.
The officer in command of the institution keeping the offender in safe custody conducts the review, with the first review occurring three years after the initial commitment and subsequent reviews occurring every two years.
“Where improvement is noted in the follow-up evaluation of the offender, it shall be brought to the attention of the President for further appropriate orders, including, where applicable, discharge.
“Section 167 of the Criminal Procedure Code provides for situations in which an accused person cannot understand the proceedings against him because of a mental illness,” the advisory stated in part.
CJ Koome’s Fresh Rules for Jailing Sick & Elderly Offenders