The Characteristics of Punishment


Date Posted: 2/18/2013 11:28:24 PM

Posted By: KOROHS  Membership Level: Gold  Total Points: 1470

The act of punishment must be sanctioned by the state. Punishment stems from an authoritative source which is usually the state. Those who inflict punishment must have legitimate authority over the offender so that parents only have the right to chastise their children with limits and not to punish them. This is achieved through the social contract theory which underpins criminal law and posits that the people give up sovereignty to a government or authority in order to receive or maintain social order through the rule of law. It’s also deemed as an agreement by the governed on the set of rules by which they are governed. According to Thomas Hobbes, human life would be nasty, brutish and short without political authority. In its absence we would live in a state of nature where each person has unlimited natural freedoms including the right to all things and thus the freedom to harm all who threaten our own self-preservation: there would be an endless “war of all against all”

It also need to be preceded by public condemnation. Punishment is the expression of public condemnation against the infringement of the law. It has a symbolic significance largely missing from other forms of penalties. It’s a symbolic way of getting back at the criminal of expressing a kind of vindictive resentment against the wrongful deed. Here basically, the institution of punishment arises from the idea that some behavior is considered unacceptable and injurious to the society and societal good. Every society has set of rules and codes and values that are established to ensure harmony and peaceful co-existence. Disturbance or violation of the code invites or calls for reaction from the society against the offender which invariably took the form of punishment.

Punishment need to be meted out by the body with legitimate or competent authority. Basically some forms of punishment depending on the gravity of the offence need to be handled with great care and thorough investigation need to be undertaken in order to provide the offender ample ground to mitigate his case and also provide ground for efficient evidence to incriminate the offender to the crime committed. This helps to avoid or reduce the chances of punishing the innocent party which may be occasioned by the incompetency of the court carrying out the trial. According to the laws of Kenya offences punishable with imprisonment of life or conviction to death which are the capital offences are only tried at the high court of which appeals lie with the court of appeal or the supreme court on grounds of law or on the conviction. Due to the comprehensiveness of the procedure followed at the high court it provides good grounds for the accurate and comprehensive presentation of a case before judgment is delivered. Offences punishable with lesser sentences are taken to the lower courts because the damages that may have been occasioned can be easily be restored due to the form of punishment occasioned hence the innocent offender can be restored to his or her original position had the offence not been committed.

It should also serve as a means to an end or be justified in terms of purpose. Based on utilitarian theory the object of punishment is to make the convict a better person and to better the community. Punishment is justified if it has social utility; curing or reforming the offender while improving the society. It’s viewed to be useful if it has positive effects to the community and the convict himself in that if the form of punishment is only used to benefit the society, it’s viewed to be useless and would not have served as a means to an end.

Punishment should be proportional to the crime committed by the convict in order to restore the imbalance occasioned by the commission of the crime against the norms and desires of the society. The gravity of the crime should be accompanied by more grave forms of punishment in order to dictate to the society the seriousness of the offence to deter the future offenders from committing the offences and to show to them the seriousness of the cause of action they may be planning to engage themselves. Serious offences occasion a lot more harm to the society than the petty offences and in order to restore the imbalance occasioned by the commission of the crime.

It should not exceed that which has been prescribed by the act of parliament. The penal code prescribes appropriate punishment for different offences. Basically they are proportional to the offence committed and based on the gravity of the offence. So in the awarding of the punishment they need to be exactly as prescribed by the law or which is viewed as lawful in regard to the circumstances of the case because they normally vary from case to case and based on the evidence adduced in regard to the offence committed by the offender.

Punishment should not be inflicted for an act done before the law forbidding it was passed (non retrospective application of the laws) under section 50(2) of the constitution, every accused person has the right to a fair trial which includes the right of not being convicted for an offence or omission that at the time it was committed or omitted was not an offence in the laws of Kenya or under international law. This basically provides the offender immunity from mischief that may be caused by the parliament and prevents him from being held liable for the offences which at the time they were committing them they were not crimes.

Lastly punishment cannot be inflicted on diplomats or persons who enjoy the diplomatic immunity. Infliction of punishment is considered hostility to the state of the diplomat and not punishment. Diplomatic theory is based on the theory of equity of sovereign states which requires that the states to keep the secrets of other sovereign states unless the affected state waivers the right.


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