The Decisive Moment of Mitigation

In any Kenyan courtroom, after a pronouncement of guilt, a critical phase begins that can dramatically alter an offender's future: the plea of mitigation. This is the opportunity for a convicted person, either personally or through their lawyer, to present reasons for the court to impose a lighter sentence. According to the Judiciary's Sentencing Policy Guidelines, which were updated in 2023, courts must consider these factors to ensure sentences are proportionate, fair, and serve the broader objectives of justice, including rehabilitation. Common mitigating factors include being a first-time offender, showing genuine remorse, the offender's youth, pleading guilty, or cooperating with authorities.

The Post-Sentencing Pathways

While mitigation is crucial during sentencing, its influence extends far beyond the courtroom, creating several avenues through which the course of justice can be modified post-conviction.

1. The Appeals Process

A sentence that is perceived as excessively harsh, particularly if the court failed to give due weight to mitigating factors, can be a strong ground for appeal. Under the Constitution, every convicted person has the right to appeal to a higher court. The High Court and the Court of Appeal can review a sentence and may reduce it if they find that the trial court's discretion was not exercised judicially—for example, by ignoring compelling mitigating circumstances. This ensures a check on the sentencing process, reinforcing the principle that justice must be tailored to the individual circumstances of the offender and the offence.

2. Remission and Parole

Once incarcerated, an inmate's journey is further shaped by mechanisms designed to encourage reform. Under Section 46 of the Prisons Act, many prisoners serving determinate sentences can earn a remission of one-third of their sentence for good conduct and industry. While historically denied to those convicted of certain serious offences like robbery with violence, courts have increasingly found this denial discriminatory and unconstitutional, affirming that remission is a key motivator for rehabilitation. Furthermore, while a formal parole system is still developing in Kenya, the principles of early release for good behaviour are embedded within the correctional framework, influenced by the same factors—like remorse and rehabilitation efforts—that are presented during mitigation.

3. The Presidential Power of Mercy

The most significant post-sentencing mechanism is the President's Power of Mercy, enshrined in Article 133 of the Constitution. On the advice of the Power of Mercy Advisory Committee (POMAC), the President can grant a free or conditional pardon, postpone a punishment, substitute a sentence with a less severe one, or remit all or part of a sentence. This committee, chaired by the Attorney-General, reviews petitions from convicts and considers a wide range of factors. These include the original mitigating circumstances, the inmate's age and health, their conduct in prison, and the views of the victims. The Power of Mercy Act of 2011 operationalizes this process, ensuring that every inmate has the right to petition for mercy.

Implications for the Kenyan Justice System

The continued relevance of mitigating factors after sentencing underscores a fundamental principle of Kenya's justice system: a focus on rehabilitation over pure retribution. By allowing for appeals based on sentencing, offering remission for good behaviour, and maintaining the constitutional Power of Mercy, the system acknowledges that individuals can change and that justice should be tempered with mercy. This multi-layered approach aims to reduce recidivism, manage prison populations, and provide a pathway for reformed individuals to reintegrate into society. However, ensuring consistency and fairness across all these avenues remains a key challenge for judicial and correctional authorities. The Sentencing Policy Guidelines aim to structure judicial discretion to prevent vast disparities in sentences for similar offences. Ultimately, the journey of a convicted person in Kenya is a dynamic process where the initial plea for leniency can resonate long after the judge's gavel has fallen.