Can discretion affect delivery of justice?

In the realm of criminal law, there exist legalities which render the concept of justice philosophically intriguing and one of the technicality is what is termed 'discretion'.

The significance of discretion is that every day decision – making of judges, prosecutors, policemen, and others distributes the burdens and benefits of law, provides answers to questions and solutions to problems. Criminal law has been described as "an island of technicality in a sea of discretion". The way Kenyan criminal jurisprudence has developed in the recent past, in particular in the period after promulgation of the new constitution, must raise many questions.

Confessions by criminals largely are nowadays inadmissible, corporal punishment was removed from all our statutes, laws relating to capital punishment at best are uncertain, and confusing. The setting up of the new independent prosecutorial department under the Director of Public Prosecution has added new dimensions to the application of criminal law.

Greater application of international treaties, added protections under the constitution, greater judicial powers to control and more often than not stop prosecutions or even investigations by investigating agencies, such as the police and Ethics and Anti-corruption Commission is making mockery of the law.

Police in the country have discretion to arrest or not to arrest or to charge or not to charge. It is a reality that this decision on the ground is largely influenced by a criminal or complainants ability to corrupt the system, depending on which side of the fence the citizen is sitting – the culprit or the complainant.

The prosecutor has discretion to prosecute. Hundreds of cases worthy of prosecution do not get prosecuted. Indeed the law intervenes and as happened in a famous case where an accused was charged with 93 offences, but the court stated that he cannot and should not be charged for more than 12 offences.

Judicial discretion is even of greater concern and this power to make some legal decisions according to discretion raises interesting questions. Under the doctrine of separation of powers, the ability of judges to exercise discretion is said to be an aspect of judicial independence and so it should be the question however, is what happens when.

Sometimes the exercise of discretion goes beyond and contrary to the laws of the country, and courts can undermine the rule of law to the extent that the discretion becomes judicial activism. Very long ago, in 1770, an English Chief Justice, Lord Marshfield, said thus: "Discretion when applied to a course of justice means sound discretion guided by law. It must be governed by rule not humour. It must not be arbitrary, vague and fanciful but legal and regular".

Discretion has even infiltrated in the law enforcement agencies such as the Commissioner of Prisons where, for example, hundreds of death sentences are not carried out by the Commissioner of Prisons in total disregard to the law.

The question of discretion interestingly comes to the fore when mandatory minimum sentences are rigidly imposed by the courts. Is it fair- and this is a real life case- for a young and perhaps misguided Kenyan to given an unsolicited kiss to a provocatively dressed lady at the matatu stand and get a mandatory sentence of 10 years imprisonment? Should the magistrate not had a discretion on sentencing? A kiss being treated as a brutal rape appears perverse.

Under Section 162 of the Penal Code it is an offence to have unnatural sex against the order of nature. Effectively, this is the offence which makes homosexuality illegal. We have hundreds of homosexuals beating their breasts and admitting to homosexuality but the police, the Director of Prosecution and even the courts turn a blind eye. Is this not perverse application of discretionary powers?

The law on the offence of murder states in Section 204 of the Penal Code that "Any person convicted of murder shall be sentenced to death" But courts have liberalised this law to say that the court has discretion to sentence the person to a prison sentence – all very contrary, arbitrary and a paradox of legal control.

There are hundreds of cases where mandatory laws couched in terms such as "must" or "shall" are arbitrarily converted by courts to read "may".

The executive –including the President – also floats and swims in the sea of discretion. In 2009 President Mwai Kibaki committed en masse the death sentences of over 3,000 convicted death row prisoners. The discretion in pardoning powers is yet another issue. Should the judicial decision to kill or not to kill a convicted prisoner under a lawful enforceable sentence be left to discretion?

In Kenya, matters of discretion are being taken lightly if not in fanciful, illegal or irregular fashion. Who will address this blatant abuse remains the question.