Good Practices in Adjudication and Sentencing in SGBV Cases
Good Practices in Adjudication and Sentencing in SGBV Cases
13,613 14,134
• E.g. Under The Prevention of Trafficking in Persons Act some of the offences
relating to sexual exploitation attract a sentence of life imprisonment while
others are punishable by death.
• The position is straight forward where the accused pleads ‘Not guilty’
• Where an accused pleads guilty the elements of the offence should be read to
him (see Adan vs Republic [1973] EA 445).
• For example Some accused persons plead guilty to rape but insist the victim
gave consent to the act.
• Or plead guilty to aggravated defilement but insist the victim was above 14 or
18 years of age
Preliminary hearing
• A necessary case management tool that ensure the expeditious hearing
of the case at the High Court level.
• Agreements on Evidence
Avoid any farther delay and ensure all party work towards determing
the case to its logical conclusion
Hearing
Witnesses
• Prosecution should ensure that it has traced and is ready with its witnesses
• As these Witnesses are either victims or close relatives should be fully
prepped for the Court hearing
• It is ideal to start this process right from the stage of inquiries
• In SGBV cases it would be ideal to introduce witnesses particularly victims to
the Court room before proceeding. A quick tour explaining the set out.
Psychosocial Support
• Parties should be alive to the need for psychosocial support.
The language is idiomatic and rich in euphemisms clearly understood by the native
speaker which may not be known to the officers of court.
For example:
‘He used me’
‘He caught me’
References to genitals should be clear and straight forward. Court should be alive to the
local cultural aspects to sex and sex based crimes.
Emotional Wellbeing
Ideally children should give their evidence in chambers because they are
easily overcome and overwhelmed by the Court atmosphere
• The Court should step in to avail facilitation for the witnesses the
accused persons wishes to call especially where they are indigent.
• Proper Service in such cases must be ascertained.
• There must be full disclosure before the trial opens
• The Court must be mindful of commoditization of some of the crimes.
Some parents connive to tramp up charges
• Watch for grudges, family and land disputes
• The right of appeal should be properly explained.
SENTENCING
Sentencing
• The parties should make proper use of the sentencing guide lines
• Sentences are given at the discretion of the Judicial Officer
• That discretion must always be exercised judiciously
• Each case decided on its unique circumstances
• The Court must hold a sentencing hearing which will enable it to
arrive at a sentence that serves the interests of all parties and
stakeholders in the matter
General Principles
• Time spent on remand should be deducted (see Rwabugande vs Ug
SCCA 25 of 2014)
• Consider all mitigating and aggravating factors (see S. 98 of TIA; S. 164
MCA)
• Sentences serve a retributive, reformative or deterrent function. In
making an assessment of appropriate sentences these principles
should be borne in mind.
Sentencing in SGBV
• Circumstances in which the offence was committed. Consider impact of the offence
on the victim
• Evidence of both physical and psychological trauma? What was the nature of injury suffered in
the course of commission of the offence?
• Has the victim suffered stigma? For example where a girl is defiled by her father.
• What is the age difference between the Convict and the victim?
Sentencing in SGBV
• The Court should note the nature of the relationship between the two?
• Was the convict a person with authority in community or over the victim?
• Were there several or repetitive incidents of commission of the offence against the
victim?
• What has the general conduct of the accused been before, during and after the trial?
Sentencing in SGBV
• Was the conduct suggestive of impunity