In drafting of statutes, creating an offence is fun. It makes the drafter feel 'powerful'. The Statute book has over thousand Laws, each creating offences. Most of these offenses are overlapping. How are the people expected to know all these offences? Nope. However, if the Penal Code was the primary source of grading of offences, even a person without familiarity with the law could merely look at the table of contents and find the particular offense definition that applies to the conduct they have a question about. Hence, we must make the Penal Code great again! This blog explains how. 

By gatuyu t.j

Reward of sin.

Enacting new rules or modifying existing laws is often needed to solve societal problems. To make the legal text enforceable, sanctions are generally created in terms of monetary or custodial penalties. Therefore, offences and penalties are integral provision of a legislation, for they embody the implication for the failure to obey the legal text. This precludes a regulatory failure.

In the Kenyan statute book of over a thousand Acts, every instrument creates some offences and consequential penalty. The problem has been establishing an offence in every legal instrument has created a statute book with overlapping criminal offenses. This because a single criminal act may violate several different criminal statutes.

You will find therefore one offence is penalized in different statutes, or visibly defects in the grading of offences. To ponder, why is the penalty for robbery with violence similar to that of malice aforethought murder? Contextually, it does not seem logical, but there may be historical narratives.

Trauma of overlapping offenses

It is not that parliament or other rule making authorities deliberately create the messy system of overlapping offenses. It is a result of decades of criminal law legislation layering one new offense or offense variation on top of existing ones, with minimal efforts made to rationalize these provisions. This may be due to political dynamics that tend to exaggerate the seriousness of the offense because people are worked up at the moment about that particular conduct.

The offense grade that seems appropriate in the heat of the moment stands out later as out of line with other related offenses, but there is a little political incentive to go back and correct the exaggeration.

This stems from having no conceptual framework that guides offences grading in the country. It is a problem that requires some attention. For you will pick a random statute, skim through the offences part, and you may struggle to decipher a logical relationship between some offence created and penalties imposed.

Generally, grading an offence with its consequential penalty should be a considered exercise, taking into account variety of offense characteristics, including whether a victim a vulnerable person like a child, if the offense was committed in a heinous or egregious way or by repeat offender, how damaging is the injury caused, the value of the property involved, the extent of the risk created, number of people affected, or the kinds of governmental function impaired. Having these considerations ensures offences are appropriately graded and penalties harmonised. 

Tell me the penalty? Abracadabra

However, the main source of bad offence grading and overlapping offences is a legislative ignorance about existing offenses and grades of the related offenses. When proposing new legislation, it would be essential for a legislator or a maker of a regulation to know what law already exists on the subject. Is the proposed offense conduct already covered? One can only know this critical information only by knowing the current criminal codes.

But with Kenya’s scattered and overlapping offenses, it is unrealistic to expect a legislator to be familiar with the offences without commissioning a major research project. This consequently perpetuates a practice of legislative drafting in ignorance of the current law and the cycle of inconsistent and irrational offense grading continues.

I’m Miss Plea Bargain! Speak to me.

Why is the poor grading and overlapping offences a problem? First, it offers too much discretion to the prosecutor, who is free to pick which of the overlapping offenses to charge, which founds an incentive for inappropriate power bargains.  In the case of corporate entities, overlapping offences generates huge total liability exposure beyond the amount of liability and punishment deserving. Hence, there is disparity in the treatment of similar offenders, according to an offender’s good or bad luck with the prosecutor they get.

Second, this undermines the rule of law by making the law complex and obscure. As earlier stated, it is a nearly impossible to reconcile the many overlapping offenses scattered across the statute book. Offences are all over! Third, it impairs certain constitutional principles such as fair notice and uniformity of criminal law application due to varying interpretation issued by courts.

A solution to this problem of overlapping, irrational and inconsistent offense grading rest in restabilising discipline consolidated offense drafting. This model works by having a primary statute that contain primary offences and their grades. If a new offense must be created, it is added into the existing offense structure. The effect would be having all of the offenses relating to a particular wrongdoing in a single code. For instance, all offenses relating to theft in the statute book, would be brought together into a single “theft offense” definition.

Make the Penal Code Great Again!

This is not a concept. Kenya introduced consolidated offence drafting in 1930 with the enactment of the Penal Code, meant to be the primary criminal code. It was supposed to be the baseline, that if Parliament intended to create an offence in a new law, they would just refer to the Penal Code or layer an offence there if necessary. That way, there would be no overlapping offenses. It has not worked. The Penal Code, apart from receiving minimal law reforms over the years, has been hugged cannibalized through consequential amendments by newer laws.

The first priority is to create a revamped criminal code. This will help parliament in establishing the scheme of offences for other laws. It would rein on prosecutorial overcharge and grading irrationality. It will make criminal law simpler, clearer, and more accessible.

If Penal Code was the only source of grading of offences, even a person without familiarity with the law could merely look at the table of contents and find the particular offense definition that applies to the conduct they have a question about, and that provision will both define the offense and specify the grade of the offense or each distinct sub offense, without delving deeper into the statute book.

It will also disciple the provisions of custodial penalties and monetary fines. For instance, if an offender was no be imprisoned for one month, what is the equivalent monetary forfeiture? Whatever the forfeiture would be, it ought to be applied as a rationale for all the offences in a statute book.

With this drafting approach, legislators contemplating a new offense or adjustment to an existing offense grade will no longer have the difficult task of figuring out what the current law provides.  

The writer is the Gatuyuriana managing editor.