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Criminology is a combination of two Latin words:
Crimen crime
Logus or logy science

It is the science or study of crime. It is concerned with the conduct of

individuals which is prohibited by society and law. It is a socio-legal study
which seeks to discover the causes of criminality and suggests appropriate


Edwin Sutherland
Criminology is the body of knowledge regarding crime as a social
phenomenon. It includes within its scope the processes of making laws,
breaking laws and reacting towards the breaking of law. (From the above
definition it is apparent that criminology is a combination of how the society
defines and deals with crime within a social and legal context).

Donald Taft
Criminology may be divided into two branches:
1. general
2. specific

Criminology in a general sense is the study of crime and criminals. In a

specific sense it seeks to study criminal behavior its goal being to reform the
criminal behavior or conduct of the individual which society condemns.

Criminology is the scientific study of crime as a social phenomenon or of
criminals and their behaviors and family conditions.
Criminology can thus be said to be and academic discipline that employs
scientific methodology to study crime, its major forms, its reasons for
existence or causation and how the criminal justice system can respond to
crime. In its narrower sense, criminology looks at criminal behavior of

individuals in society and how they come to be perceived as such i.e. Their
social, cultural and economic background. In a wider sense, it looks at how
the criminal is dealt with e.g. how he is punished and therefore includes

Criminology as a subject therefore deals with:

criminal acts;
the criminal;
it indirectly deals with the victim of the crime;
crime causation and theory;
crime prevention and detection of potential offenders;
The efficacy of the criminal justice system.
Criminology borrows heavily from other sciences including biology
(genetical make up of a criminal) psychology) (thinking process of a
criminal mind), psychiatry (mental stability and inclination of a criminal),
philosophy, general medicine etc.

I. The most significant purpose of criminology is its concern for crime
and criminals. There is a basic assumption that no one is born a
criminal. (Check out the Lombroso theory). Reformation is therefore
treated as the ultimate object of punishment while individualization
i.e. according individualized understanding and treatment is the
preferred method for such reformation.
II. It is important for lawyers(when dealing with criminal clients it helps
to understand their mind set and particular circumstances for purposes
of giving proper legal advise as well as for pursuing a logical line of
defense), judicial officers(for purposes of awarding appropriate
sentencing, it is important for a judicial officer to not only understand
the offender, but the society/communitys perceptions and emotions
on given offences), law enforcement officers(for purposes of
investigations, prosecutions, surveillance and crime prevention, for
those holding criminals such as prison officers), social workers,
psychologists, etc to understand the criminal more.
III. It enhances official understanding of criminals, offenders, the types
and prevalence of offences committed, generally or specifically by a
class of people or in certain localities. This kind of understanding
supported by data is important for crime detection and control. The

government is enabled to plan better in terms of allocation of
resources towards fighting different types of crimes.
IV. The ultimate object of criminology is to render a crimeless society.
(This is of course a very remote possibility especially considering how
crimes are created and the fact that sometimes very legitimate
behavior i.e. changaa drinking is criminalized).

Proponents of the view that criminology is not a science base their argument
on the standards of quality and validity of what can be classified as science.
To this end they argue that the validity of a science is based on two concepts:
I. Stability i.e. it must be firmly established with unlikelihood of
ad hoc and unpredictable changes
II. Homogeneity, i.e. the quality of being alike all of the same type.
Since crime is not stable, nor is it homogenous, i.e. not all actions amounting
to a crime in one jurisdiction will amount to crime in all jurisdictions, it is
therefore concluded by the said proponents that criminology cannot be a


George Wilber
He argued that anti-social behavior in society cannot be scientifically
interpreted. According to him, general propositions of universal validity are
the essence of a science. Such propositions can only be made regarding
stable and homogenous units. Crime is not a stable homogenous unit but
varies from place to place and from time to time. What may be regarded as
a crime in one jurisdiction may not be a crime in another e.g. abortion,
euthanasia, etc.

Max Weber
A German criminologist.
He argued that criminology as a branch of sociology merely researches into
components of human behavior without providing for solutions unlike
normal sciences. Thus by offering an analysis of criminal acts without
puritive answers it merely exposes a situation without a solution and thus
cannot be called a science. (What about penology which offers solutions,
and arguments for rehabilitation and reintegration into society,
decriminalization, which are advanced by criminologists, it is therefore not

entirely true that criminology does not offer solutions in any case do all
sciences offer puritive solutions).

Herman Manheim
He belongs to the school that argues that criminology is not a science as it
has no techniques and methods of its own, and that it borrows heavily from
others e.g. medicine, psychology etc. He argues that so far criminology has
developed no scientific methodology of its own; its techniques of research
are on the whole identical with those used in other social sciences.

In response to Manheims arguments; His response is that: - Even amongst
the natural sciences there are some like botany and zoology which deal with
the study of facts which are not strictly unique and individual and which do
not deal with general phenomena. Criminology is based on other social
sciences just like medicine is based on anatomy, physiology, physics,
chemistry etc. Neither medicine nor criminology is purely theoretical. They
have a meaning which derives from their practical application. The
justification for medicine lies in the therapeutics and public health and that
of criminology in penal reform, penology and prevention of crime.


The concept of crime is essentially concerned with social order. Generally, a
crime can be defined as an act fit for serious condemnation or an act that is
frowned upon by society it may start off as a moral wrong that is then
elevated to a prohibited act for which the society ascribes specific sanctions.

He defined a crime as a wrong whose sanction is punitive and which is in no
way remissible by any private person but is remissible by the Crown.

Defined a crime as an undesirable act which the state finds most convenient
to correct by the institution of proceedings for the infliction of a penalty
rather than leaving the remedy to the discretion of the injured person.

He defines criminal behavior as behavior which is in violation of criminal
law. No matter what the degree of immorality, reprehensibility, or indecency

of an act, it is not a crime unless it is prohibited by criminal law. Professor
Sutherland further mentions seven attributes of a crime.
a. Before a behavior can be called a crime there must be certain
external consequences or harm. A crime has a harmful impact
on social interest.
b. The external consequences or harm shall be strictly forbidden.
Anti-social behavior is not a crime unless forbidden by law.
c. There must be intention.
d. Mens rea (a guilty mind) must be present
e. There must be fusion or concurrence of mens rea and intention
f. There must be a causal relationship between the legally
forbidden harm and the misconduct
g. There must a legally prescribed punishment.

Difficulties exist in the legal definition of crime such as:

There is no universal concept of crime
From time immemorial certain conduct or norms were
permissible but these vary with time and place
From a legal point of view crime can be described as:
1. From the nature of the act itself.
a. It is a wrong which causes harm
b. It is a wrong against the whole community
c. It is a wrong that directly threatens the well-being and security of
2. From the proceedings (i.e., the process)
a. Crime is dealt with through criminal proceedings
b. It is an illegal act whose proceedings are initiated, stopped or
pardoned by the state. (role of AG, etc)

3. From the consequences

a. It is a wrong whose sanction is punishment
b. It is a wrong whose sanction is punitive and for which the state
decides on the proceedings and the nature of that punishment.

The Principle of Legality

The principle is embodied in three maxims:
a. Nullum Crimen Sine Lege

There can be no crime without law. No one is held criminally liable unless
he has done an act which is expressly forbidden under existing law. Thus,
crimes must be very specific. They cannot be assumed by way of analogy.
The conduct that is sought to be prohibited must be clearly provided for and
the punishment for it provided. (The only offence that is not clearly defined
in the statutes is contempt of court (on the face of it), but nonetheless a
remedy is provided).
The principle specifically provides against retroactivity or retrospectively.
Meaning that; conduct that has already occurred cannot be affected by the
passing of a statute making the activity criminal. Therefore laws applying to
crime cannot apply backwards.
b. Nulla Poena Sine Lege
There is no liability under criminal law for omissions. Thus moral wrongs
are not legal wrongs and are therefore not punishable.
c. Nullum Crimen Sine Poena

There can be no crime without punishment

For one to be guilty of a crime two elements must be proved, in
satisfaction of the maxim actus non facit reum mens sit rea.
1. Mens Rea A guilty mind
2. Actus Rea Guilty Act

The law however excludes certain persons from criminal liability or

presumes them to be incapable of committing an offence.
Under Section 14 (1) of the Kenyan Penal Code, a person below the age of
eight years is not criminally responsible for any act or omission. This is an
irrebuttlable presumption of law.
Under Section 14 (2) of the Penal Code; a person between the ages of eight
and twelve is not criminally responsible for an act or omission unless it is
proved that at the time of doing the act or making the omission he had the
capacity to know that he ought not to do the act or make the omission. This
is a presumption in law that can be rebutted.
Under Section 14(3) a male person under the age of twelve years is
presumed to be incapable of having carnal knowledge.
Mens rea may also be affected by other factors such as:
1. Insanity
Every person is presumed to be of sound mind unless the contrary is proved.
A person is not criminally responsible for an act or omission if at the time of
doing the act or making the omission he is by reason of disease affecting his

mind incapable of understanding what he is doing or knowing that the ought
not to do the act or make the omission. Where one is found guilty of an
offence but proves that at the time of the commission or omission they were
suffering from insanity; the accused will then be found to be guilty but
insane and detained at the pleasure of the President, (see section 166 of the
Criminal Procedure Code, CAP 75, Laws of Kenya, which makes elaborate
provisions for the defense of insanity).
2. Mistake or ignorance of the law
Ignorance of the law is no defense to a criminal charge. It is presumed that
all citizens know the law.
3. Intoxication
Intoxication does not constitute a defense to any criminal charge unless the
intoxication was such that the person did not know that such act or omission
was wrong or did not know what he was doing. (Note that intoxication itself
can constitute a crime, e.g. drunken driving).
4. Compulsion
A person is not criminally responsible for an act or omission if it was done
or omitted due to threats on the part of the offender to kill him or do him
grievous bodily harm if he refuses to do the act or make the omission.
Threats of future injury do not excuse offense. Section 16 of the Kenyan
Penal Code states as follows:
A person is not criminally responsible for an offence if it is committed by
two or more offenders, and if the act is done or omitted only because during
the whole of the time in which it is being done or omitted the person is
compelled to do or omit to do the act by threats on the part of the other
offender or offenders instantly to kill him or to him grievous bodily harm if
he refuses; but threats of future injury do not excuse any offence, nor do any
threats excuse the causing of or the attempt to cause death.
Section 19 states as follows:
A married woman is not free from criminal responsibility for doing or
omitting to do an act merely because the act or omission takes place in the
presence of her husband; but, on a charge against a wife for any offence
other than treason or murder, it shall be good defense to prove that the
offense was committed in the presence of, and under the coercion of, the
5. Necessity
This defense is applicable is from an objective standpoint the accused
can be said to have acted reasonably and proportionately in order to

avoid a threat of death or serious injury. (R v Dudley and Stephens
QBD (1881 -5) All ER 61. The two accused with a third man and the
deceased, a 17 year old boy, were cast away in an open boat, 1,600
miles from land. When they had been eight days without food and six
days without water, the accused killed the boy, who was weak and
unable to resist but did not assent to being killed. The men fed upon
his body and blood for four days when they were picked up by a
passing vessel. At the trial for murder, the jury found by a special
verdict that if the men had not fed upon they boy they would probably
not have survived the four days; that the boy was likely to have died
first; that at the time of the act there was no reasonable prospect of
relief; that it appeared to the accused that there was every probability
that they would die of starvation unless one of the castaways was
killed; that there was no appreciable chance of saving life except by
killing; but there was no greater necessity for killing the boy than any
of the three men. On reference of this decision to the QBD, the
accused was found guilty of murder. Various arguments were made
which in effect seems to be that necessity should not involve the taking
of an innocent life, which does not threaten one in order to save ones
own life.
To preserve ones life is generally speaking, a duty, but it may be the
plainest and the highest duty to sacrifice it. War is full of instances in which
it is a mans duty not live, but to die..It is not correct, therefore, to say that
there is any absolute and unqualified necessity to preserve ones life.
It is not needful to point out the awful danger of admitting the principle
which has been contended for. Who is to be judge of this sort of necessity?
By what measure is the comparative value of lives to be measured? Is it to
be strength or intellect, or what? It is plain that the principle leaves to him
who is to profit by it to determine the necessity which will justify him in
deliberately taking anothers life to save his own. In this case the weakest,
the youngest, the most unresisting was chosen. Was it more necessary to kill
him than one of the grown men? The answer be, No.
So spake the Fiend; and with necessity,
The tyrants plea, excused his devilish deeds.

It is not suggested that in this particular case the deeds were devilish; but
it is quite plain that such a principle, once admitted, might be made the
legal cloke for unbridled passion and atrocious crime. There is no path safe
for judges to tread but to ascertain the law to the best of their ability, and to

declare it according to their judgment, and if in any case the law appears to
be too severe on individuals, to leave it to the Sovereign to exercise that
prerogative of mercy which the Constitution has entrusted to the hands
fittest to dispense it. It must not be supposed that, in refusing to admit
temptation to be an excuse for a crime, it is forgotten how terrible the
temptation was, how awful the suffering, how hard in such trials to keep the
judgment straight and the conduct pure. We are often compelled to set up
standards we cannot reach ourselves, and to lay down rules which we could
not ourselves satisfy. But a man has no right to declare temptation to be an
excuse, though he might himself have yielded to it, nor allow compassion for
the criminal to change or weaken in any manner the legal definition of the
crime. It is therefore, our duty to declare that the prisoners act in this case
was willful murder; that the facts as stated in the verdict are no legal
justification of the homicide; and to say that, in our unanimous opinion, they
are, upon this special verdict guilty of murder. (They were then sentenced to
death. However, the sentence was subsequently commuted to one of 6
months imprisonment without hard labour).
6. Self Defense
A person in defending himself can use such force as is necessary but the
means of defense must be comparable with the means or degree of force
being used against him. Excessive force is not justifiable. The Kenyan
Criminal Procedure Code deals with use of force under Section 23 (which
deals with arrest); this issue is also dealt with under Section 18 of the Penal

Section 21 (2) of the CPC

If a person forcibly resists the endeavour to arrest him, or attempts to evade
the arrest, the police officer or other person may use all means necessary to
effect the arrest.
Subsection (3)
Nothing in this section shall justify the use of greater force that was
reasonable in the particular circumstances in which it was employed or was
necessary for the apprehension of the offender.

Various scholars have attempted to explain the causation of crime and
criminal behavior. Each school of criminology explains crime in its own
manner and suggests punishment and measures to suit its ideology. Each
school represents the social attitude of people towards crime in a given time.

Pre-Classical School of Criminology

During the period of the seventeenth century Europe was characterized by a
dominance of religion in state activities. At this stage, scientific knowledge
was yet unknown. The concept of crime was vague and obscure. Society
was at the time largely unable to explain criminal behavior. An explanation
of criminal conduct was therefore sought through spirits, demons, and other
unknown powers. The principle behind this concept was that a man
commits a crime due to the influence of some external power and is not
subject to the control or understanding of man. Since the spirit world is not
one that is easily understood or discernable, it formed a perfect explanation
for crime.
No further attempts were made to probe the real cause of crime. Worship,
sacrifices, ordeals by fire and water were usually prescribed to pacify the
spirit and relieve the victims of its evil influence. Trial by battle was also
used as a method of deciding the fate of the criminal. The criminal was
therefore treated as a person who could only be cured through torture and
pain. The pre-classical thinking has however withered away with the lapse
of time and advancement of knowledge.

Naturalistic School
The proponents of this school argued that crime must be explained through
the use of ideas and interpretations of objects and events and their
interrelation with the existing world. Thus, there is no place for other
worldly powers or spirits. No matter how unsatisfactory, the explanation
must rest on what is known or assumed to be true of the physical and
material world. This approach is ancient as well as modern.

The Classical School of Criminology

During the middle of the eighteenth century, Beccaria the pioneer of modern
criminology expounded his naturalistic theory of criminality by rejecting the
theory propounded by the pre-classical school. He laid greater emphasis on
the free will of the individual, arguing that intelligence and rationality are
the fundamental characteristics of man and therefore the basis for the
explanation of human behavior whether individual or collective. Thus,
intelligence makes man capable of self-direction and any conduct engaged in
will be assumed to have been thought of and rationalized by the individual.
Within this frame of reference, crime and criminals are usually viewed from
a strictly legal point of view. I.e. crime is defined as the commission of any
action prohibited by criminal law or the omission of any act required by it.
A criminal is defined as a person who commits a crime. Crime is seen as the
product of the free choice of the individual who assesses the potential
benefits of committing the crime against its potential cost. The rational
response of society should therefore be to increase the cost and decrease the
benefits of crime to the point that individuals will not choose to commit a
The task for criminology is seen as designing and testing a system of
punishment that would result in the minimum occurrence of crime. Thus,
this perspective is concerned with the question of deterrence.
The main tenets of the classical school of criminology are as follows:
1. Man applies his sense of reasoning as a
responsible individual:
2. It is the act of an individual and not his intent
which forms the basis for determining
criminality in him. Classical criminologists are
therefore concerned with the act of the
criminal rather than his intent.
3. The classical criminologists are greatly
influenced by hedonism the pain (cost) and
pleasure (benefit) theory. Thus, they accepted

punishment as a mode of inflicting pain,
humiliation and disgrace on the offender so as to
create fear in him and thus control his behavior.
4. The proponents of this school of thought
considered crime prevention more important
than the punishment for it. They therefore
stressed the need for a well-established system of
criminal justice.
5. The classical criminologists supported the right
of the state to punish offenders in the interest of
public security. Keeping in view the hedonistic
principle of pain and pleasure they pointed out
that individualization was to be the basis of
punishment. The punishment was to be meted
out keeping in view the pleasure derived by the
criminal from the crime and the pain caused to
the victim there from. They however advanced
the theory of equalization of justice i.e. Equal
punishment for the same offence.
6. They further believed that criminal law was
primarily based on positive sanctions. They
were against arbitrary use of power by judges
and abhorred torturous punishments.
The greatest achievement of the classical school is the fact that it shifted
emphasis from myths and concentrated on the personality of the offender in
order to determine his guilt and punishment. In other words, Beccaria was
the first criminologist to shift the emphasis from crime to criminals.
Nonetheless, the classical school has the following shortcomings:
Firstly, it proceeded on an abstract presumption of free will and relied
solely on the criminal act without devoting any attention to the state of
mind of the criminal;
It also erred in prescribing equal punishment for similar offences thus
making no distinction between first offenders and habitual offenders.

Neo-Classical School of Criminology

The free-will theory of the classical school did not survive for long due to
the oversights mentioned above. The neo-classists asserted that certain
categories of offenders such as minors, idiots, insane or incompetent persons
had to be treated leniently irrespective of the similarity of their criminal acts

with those of other offenders. This reasoning was based on the argument
that such persons are incapable or partially incapable of distinguishing right
from wrong.
The Neo-Classical theory can be summarized as follows:
1. They approached the study of criminology on scientific lines by
recognizing that certain extenuating situations or mental disorders
deprive the criminal of his normal capacity to control his conduct. In
so doing they represent a reaction against the severity of the classical
view of equal punishment for the same offence.
2. They were the first school to point out the distinction between a first
offender and a recidivist.
3. They started on the premise and assumption that man acts on reason
of intelligence and is therefore responsible for his own conduct. But
those lacking normal intelligence or suffering some mental depravity
are not responsible for their conduct as they do not possess the
capacity of distinguishing between good or bad and should therefore
be treated differently from other offenders.
4. Although they recommend lenient treatment for irresponsible or
mentally deprived criminals on account of their incapacity to resist
criminal tendency, they unanimously believed that all criminals
whether responsible or irresponsible must be kept away from society.
5. The distinction between responsibility sanity and insanity as
suggested by the neo-classical school paved way for the formation of
the different correctional institutions such as parole, probation etc in
the criminal justice system. Through this school therefore attention of
criminologists was drawn to the facts that all crimes have a cause.
6. This school adopted a subjective approach to criminology and
concentrated their attention on conditions under which an individual
commits crime.
7. The origin of the jury system and the assessor system is essentially the
result of the reaction of the neo-classical approach towards the
treatment of offenders.
The main shortcoming of the neo-classical school is that their theory
presumes that the criminal whether responsible or irresponsible is a menace
to society and therefore needs to be eliminated from it. Their primary
concern is therefore to protect society from crime and criminals.

Positive Criminology
This school presumes that mans behavior is determined by factors outside
his control. These factors are either biological or cultural.

Those who argue that the factors are biological believe that mans social
organization has developed as a result of his biological evolution and hence
social evolution is subsequent and not primary. On the other hand positivists
who base their theory on cultural factors; argue that mans behavior despite
his identification with the world of biology is always related to and
somehow reflects the characteristics of the social world in which he lives.
Positivists thinking thus relies heavily o philosophy, biology, sociology and
history among other disciplines. Criminology is therefore understood as an
analysis of criminal behavior through scientific study of the physical, social
and cultural characteristics of the criminal.

Critical Criminology
This is a framework based on critical thinking, employing a variety of
disciplines which include political science, economics, sociology and
philosophy. Its proponents are not preoccupied with the question of whether
mans behavior is free or determined. They are concerned with the process
by which man creates the social world in which he lives.
Critical criminologists would for example maintain that the phenomenon of
crime is socially constructed when a society defines certain actions and
people as criminal. Any of a wide variety of people and actions may, at one
time or another, be the subject of these definitions.
Thus crimes and criminals are not independent phenomena that can be
identified and studied objectively by the social scientist. Crime and
criminals exist only to the extent that they are defined as such by society.
The critical criminologist therefore studies the processes by which particular
people and actions become criminal at particular times and places.

This is one of the earliest positivist schools of thinking.
With the advance of time and the development of scientific research during
the nineteenth century certain doctors in Europe were successful in
establishing that it was neither the free-will(Classical) of the offender nor
his innate depravity nor evil spirits that actuated the offender to commit
crime. The real cause of crime lay in the anthropological features of the
criminal. Some proponents of this theory tried to demonstrate the organic
functioning of the brain and established a co-relationship between
criminality and the structure and functioning of brain.
The main proponents of this theory are three Italian criminologists:
Cesare Lombroso
Raffaele Garofolo
Enrico Ferri

Cesare Lombroso
He is referred to as the father of the Italian school of criminology. He was
an Italian psychiatrist who was a physician in the army. Lombroso turned
attention from crime to criminals. During his period of service in the army
he was able to observe those army personnel who were trouble-makers.
From his experience he concluded that the criminals were a distinct
anthropological type possessing definite physical characteristics.
According to him, the criminal was a biological throw-back to an earlier
evolutionary stage a man more primitive and savage than his non-criminal
counterparts. His theory was based on the view that the physical
characteristics of the criminal were an important causation for his criminal
behavior. The theory was largely based on degeneracy. This degeneracy
was atavistic i.e. the criminal was inferior in his development to normal

man and resembled lower or ape-like animals. Lombroso was therefore, of
the view that criminals were born criminal.
He arrived at his conclusions, based on a study of 833 Italian criminals
mainly drawn from the army.
From his research, he concluded that born criminals had the following
1. They had a deviation in head size and shape;
2. Their faces were not symmetrical;
3. They would have excessive dimensions of the jaw and cheek bones;
4. They would have eye defects and peculiarity;
5. They had ears of unusual size very small or standing out from the
head as do those of chimpanzees;
6. the nose would be twisted and upturned. For thieves, the nose would
be flat, beak-like for murderers or with the tip rising like a peak;
7. The lips would be fleshy and swollen;
8. The dentition would be abnormal;
9. The chin would be receding or excessively long or excessively flat as
in apes;
10.Abundance and variety of wrinkles;
11.Anomalies of the hair marked by characteristics of the hair of the
opposite sex;
12.Defects of the thorax too many or too few ribs
13.Inversion of sex characteristics in the pelvic region;
14.Excessive length of the arm;
15.Too many or too few fingers or toes.
Of the 833 criminal people studied, 21 percent had one or more of such
anomalies, 43% had five or more. A person with five or more was
described/classified as a criminal. As such Lombroso adopted an objective
and empirical approach to the study of criminals through his anthropological
In further research, he classified criminals as follows:
1. The Born Criminal

In his opinion, these were criminals who could not refrain from
engaging in criminality. The environment had no relevance
whatsoever to the crimes committed by these offenders. He therefore,
considered these criminals to be beyond reformation;
2. Insane Criminals

The second category of criminals were insane criminals who resorted
to criminality on account of certain mental disorders or insanity.
3. Crimes of Passion

The third category are those who commit crime in a state of passion or
due to inferiority complex;
4. Atavistic Criminals

The atavistic category are those who commit crime due to alcohol or
when they get the opportunity.

Critique of Lombrosos theory;

Charles Goring
He was an English criminologist who carried out research on the
psychology of criminals. He agreed with Lombrosos statistical and
inductive method and supported the latters view that criminals were
often mentally depraved. He also commended Lombroso for his
assertion that the centre point of penology was neither crime nor
punishment but the individual.
He critiqued Lombrosos worked based on the following issues;
There is no such thing as a physical criminal type. In his opinion,
the whole of Lombrosos enterprise was conducted with the
intention of stamping a pre-conceived idea with the hallmark of
One cannot declare people criminal merely by their physical
characteristics. The use of the word criminal should be restricted
to a legal framework which prohibits certain conduct and which
finds those guilty of such conduct criminal and punishes them as
Even if specific differences did exist between the criminal and the
non-criminal, this does not mean that the criminal is abnormal but
rather the differences evidence a selected class of normal men
whose qualities may present extreme degrees from the normal

Thus Goring concluded that there is no such thing as a physical criminal.

E.A. Hooton
He studied 17,000 individuals of whom 14,000 were criminals drawn from
across 10 states of the United States of America. His conclusions were quite
similar to Lombrosos.
According to him crime is the result of the impact of the environment upon
low grade human organisms. It therefore follows that the elimination of
crime can only be effected the expiation of the physically, mentally and
morally unfit or their complete segregation.
The study concluded that big tended to be murderers and robbers. Tall
heavy men are killers and also commit forgery and fraud. Undersized men
are thieves and burglars; short heavy persons commit assault, rape and other
sex crimes. Men of mediocre physique have no specialty and commit
several offences.

1. In 19 out of 33 measurements, there was a significant difference
between criminals and civilians;
2. Criminals are inferior to civilians in nearly all their body
3. Physical inferiority is significant as it is associated with mental
4. Tattooing is more common among criminals than civilians;
5. Thin lips and compressed jaw angles are common in criminals;
6. The ear of the criminal tends to be rolled or small
7. Criminals have low sloping foreheads, thin necks and sloping
He was criticized on the following grounds:
Most of the people he studied were recidivists i.e. they fell back
to crime.
He ignored other important differences between criminals and
civilians apart from physical characteristics.
While he accepted that genetic make-up may influence
behavior, he never actually clarified how this genetic make-up
would actually influence the criminal.

Enrico Ferri (1856 1929)
He was a student of Lombroso, though he challenged Lombrosos views on
criminality. Through his research, Ferri proved that mere biological reasons
were not enough to account for criminality. IN his opinion, there were other
factors that influenced crime such as psychological, sociological, economic
and emotional factors. For this reason Ferri is referred to as the founder of
criminal sociology.
Ferri described a criminal as an agent of outside forces. During Mussolinis
regime Ferri prepared a Penal Code for Italy. In it he proposed that for the
reformation, prevention and rehabilitation of criminals the following social
needs had to be considered; free trade, abolition of monopolies, better street
lighting, birth control, freedom of marriage and divorce, public recreation,
better economic conditions of the public, improvement of laws and abolition
of certain taxes. However, Ferri emphasized that punishment is still
important for the alleviation of crime and in some cases useful for
Ferri classified criminals into the following categories:
1. Insane criminals inclined to crime due to congenital factors;
2. Born criminals - commit crimes out of impulse, anger, or excessive
3. Occasional or habitual criminals influenced by social factors around
them and the need to satisfy certain needs within the social
He categorized the factors that lead to criminal behavior as follows;
Physical race, climate, geographical location, seasonal effects,
Anthropological age, sex, organic and psychological conditions;
Social population density, custom, religion, organization of
government, economic and industrial conditions.

Raffaele Garofolo (1852 1934)

Garofolo was a magistrate in Italian courts. He agreed with Lombroso and
Ferri in emphasizing the positive approach to crime - i.e. that crime can
only be understood by scientific research and investigations. In so doing he
rejected the pre-classical theory and the classical theory of free will.
Garofolo formulated a sociological definition of crime where crime meant
any immoral and harmful act that is regarded as criminal by the public. The
criminal who commits the crime has no pity (sympathy) or probity

(honesty). Lack of pity causes crime against persons while lack of probity
leads to crime against property.
He categorized criminals as such:
1. Endemic criminals e.g. murderers, they commit crime in their own
locality and are mainly influenced by passion.
2. Criminal deficient in probity i.e. honesty e.g. thieves
3. Criminals influenced by lust lascivious criminals
4. Violent criminals affected by environmental influences such as
prejudices of honor, politics and religion
Garofolos main contribution was his concentration on the idea of motive as
an important causation of crime. An understanding of motive was the first
step to changing the criminal and alleviating criminal behavior in society.
He suggested three means of eliminating crime:
1. Death for those whose acts grow out of permanent psychological
anomaly which renders the subject for ever incapable of a social life.
2. Partial elimination including lengthy or life time imprisonment and
transportation for those fit only for the life of nomadic hordes or
primitive tribes. He also suggested mild isolation for young and more
hopeful offenders.
3. Repatriation for those who commit their under exceptional
circumstances not likely to occur again.
Garofolo was however, not very optimistic about reformation of
offenders from the experience in the criminal justice system. He
therefore, strongly emphasized and pleaded for elimination of habitual
offenders were incapable of social adaptation as a measure of social
Modern positivism does not strictly adhere to Lombroso, Ferri, or
Garafolos arguments. It however emphasizes the application of
scientific methods to the study of criminal behavior, the criminal himself,
his environment and other causative factors in an attempt to determine
the causes of crime and its elimination of reduction in society.

Appraisal of the Positive School

It rejected the earlier classical theories of spirit and free will;
It attributed criminality to anthropological, physical and social
The attention of the criminologist was drawn to the individual, the
personality of the criminal rather than his act the crime or

punishment. This paved way for modern penology to emphasize
individualization as a method reformation;
Exponents abandoned the retributive mode of punishment.
Reformatory modes were to be used on different classes of
Only those criminals that were incapable of reformation were to be
While deciding a case a judge should not only consider the law but
the circumstantial conditions of the accused.

The Ecological School

The ecological school examines factors including the environment and

other social factors that may lead to criminal behavior.

Social Disorganization Theory

According to this school of thought high crime rates are indices of an
underlying state of social disorganization. Increase or decrease in
population can cause social disorganization, rapid changes in technology,
industrial growth, cultural conflict etc.

The Differential Theory

This theory was developed by Professor Edwin Sutherland an America
criminologist. This theory is based on the following points:
1. The processes which result in criminal behavior are
fundamentally the same in form as the processes which result
in lawful behavior. Criminal behavior, just like lawful behavior
is learned. Thus a person who is not already trained in crime
cannot invent criminal behavior
2. Criminal behavior is determined by a process of association
with those who commit crime just as lawful behavior is
determined by association with those who are law abiding.
3. Differential association is the specific causal process in the
development of criminal behavior. The principles of the
process of association are the same in the development of
criminal and lawful behavior but the techniques, training,
motive etc in the two processes differ. This is why Sutherland
calls it differential association.

4. A person becomes delinquent because of an excess of
definitions favorable to violation of law over definitions
unfavorable to violation of law.
5. The chance that a person will participate in systematic criminal
behavior is determined roughly by the frequency and
consistency of his contacts with other persons of a criminal
6. Cultural conflict is the underlying cause of differential
behavior. This is common in areas where society is composed
of people of different races, ethnic groups, habits and cultures.
7. Social disorganization is the basic cause of systematic criminal

1. Sutherlands theory does not attempt to explain the origin of crime. It
relies on an existing criminal group that influences a normal person to
engage in criminal activities.
2. The theory cannot apply uniformly to all kinds of offenders e.g. rural
and urban based offenders, white and blue-collar criminals. It cannot
apply evenly to perpetrators of individual crimes e.g. crimes of
passion, occasional and incidental offenders or those pushed to
criminal conduct by factors outside their control e.g. Genetic make
up, mental imbalance etc.
3. It has also been argued that contrary to Sutherlands theory, criminal
or delinquent behavior is not learned. It comes naturally. It is non-
criminal behavior that is learned.
4. The theory fails to recognize that there may be an element of free will
in human behavior and leaves little if any room for the introduction of
new knowledge i.e. it acts as a conclusive study, yet it is generally
accepted that there must be an element of the unknown.
5. The theory fails to recognize biological and psychological factors. It
is argued that biological differences in human personality also
account for criminality in the individual.

Response to the critics

In response to one of the critics George B Vold (Theoretical Criminology,
Oxford University Press 1958) who stated thus; One of the persistent
problems that always has bedeviled the theory of differential association is

the obvious fact that not every one in contact with criminality adopts or
follows the criminal pattern. (page 194).
The response has been that this criticism fails to take into account the words
differential and excess, these words refer to both criminal and anticriminal
associations and had to do with counteracting forces. Melvin L DeFleur and
Richard Quinney (A Reformation of Sutherlands Differential Association
Theory and Strategy for Empirical Verification: (Journal of Research in
Crime and Delinquency, January 1966). They discovered that the sixth
assertion of the theory says that persons become criminals because of
exposure to an overabundance of criminal associations, in comparison with
anti-criminal associations.
They restated the theory as follows:
Overt criminal behavior has as its necessary and sufficient conditions a set
of criminal motivations, attitudes, and techniques, the learning of which
takes place when there is exposure to criminal norms in excess of exposure
to corresponding anticriminal norms during symbolilc interaction in primary
Hence it is erroneous to argue state or imply that the theory is invalid
because a category of persons such as policemen, prison workers or
criminologists have had extensive association with criminal behavior
patterns yet they are not criminals.
Secondly, in response to the criticism that the theory says that persons
become criminals through association with criminals is not the correct
position. The theory it is posited is concerned with ratios of patterns of
behavior , no matter what the character of the person presenting them.
Accordingly if a mother teaches her son that honesty is the best policy, but
also teaches him that it is alright to steal a loaf of bread when you are
starving, she is presenting the son with an anticriminal behavior pattern and
a criminal behavior pattern, even if she herself is honest, non criminal and
even anticriminal. In other words one can learn criminal behavior patterns
from persons who are not criminals and anti criminal behavior patterns from
hoods, professional crooks, habitual offenders and gangsters.
Thirdly, there was criticism based on the use of the word systematic as
opposed to general criminal behavior, in subsequent publications Sutherland
deleted the offending word.
Fourthly, in response to the criticism that the theory does not explain why
people have the associations that they have, it is stated that this is a highly
relevant research problem and when viewed as a principle that attempts to
account for variations in crime rates it does deal in a general way with

differential opportunities for association with an excess of criminal behavior
Lastly the responses can be seen in the context of on going research, ie the
theory could only be realistically be expected to deal with facts or norms that
were known and available at its conception, criticisms form a good basis for
new research taking into account various developments.

Multiple Causation Theory

Many scholars have insisted that crime is a product of a large number of
factors and that these factors cannot now and perhaps cannot ever, be
organized into general propositions which have no exceptions; that is they
insist that no scientific theory of criminal behavior is possible. This
approach which is considered more of an approach than theory is known as
the multiple causation or factor theory. It is used primarily in discussions of
individual cases of crime, but one form of this approach is also used in
analysis of variations in crime rates.
Those who use this approach to study individual cases are convinced that
crime is as a result of a combination many factors, while another case is also
caused by combination of factors and circumstances. Factors and
circumstances taken onto consideration include; anthropological, physical,
natural or sociological factors. Social factors include population density,
immigration, public opinion, customs, religion, public order etc.
A proponent of this approach William Healy (The Individual delinquent
(Boston: Little, Brown 1915) was determined that no theoretical orientation
or preconception would influence his findings and that he would simply
observe any causal factor present. The result was that at a time when
many were concerned with discounting the physical and biological
explanations for crime, this multiple causation assumption based on
empirical studies gained importance within the area of criminology.
Anthropological factors include age, sex, status, and profession.
Physical factors include race, climate, fertility, seasons, and temperature etc.
A classical example of multiple factor thinking about individual cases is
found in the book Social Disorganization by Mabel A Elliot and Francis E
Merrill (New York, Harper 1941):
Elaborate investigations of delinquents give us conclusive evidence that
there is no single predisposing factor leading inevitably to delinquent
behavior. On the other hand, the delinquent child is generally a child
handicapped not by one or two, but usually by seven or eight counts. We are
safe in concluding that almost any child can overcome one or two handicaps,
such as the death of one parent or poverty and poor health. However, if the

child has a drunken unemployed father and an immoral mother, is mentally
deficient, is taken out of school at an early age and put to work in a factory,
and lives in a crowded home in a bad neighborhood, nearly every factor in
his environment may seem to militate against him.
All the statement may seem to infer that each and every factor is of equal
importance, adherents of this approach, ordinarily argue that either the
presence of one or two important factors or seven or eight minor factors will
cause delinquency.

Cyril Burt
A British scholar who using this multiple approach in a study (London:
University of London Press, 1944, at p 600), found 170 conditions, every
one of which was considered as conducive to delinquency. (Sutherland calls
this the inevitable consequence of such crass empiricism.)
Crime is not assignable to one universal source but rather to a wide variety
of reasons which is best explained by a multiple causation approach.
Others have argued that the multiple causation or multiple factor theory is
more illuminating and more in accord with the variety of people involved in
crime the variety in behavior and mentality of the people concerned. The
approach recognizes that behavior is conditioned by natural, biological,
social cultural and economic influences.

Albert Cohen (Harvard, 1951)
1. There has been confusion of explanation by means of a single factor
and explanation by a single theory or system of theory applicable in
all cases. A single theory does not explain crime in terms of a single
factor and is often concerned with a number of variables. A variable
is a characteristic or aspect such as velocity or income with respect to
which something may vary. We make statements of fact in terms of
the values of these variables, e.g. The crime rate is high among
persons with incomes of less than $2,000. per year. The pertinent
variable here is income and its value is $2,000. but neither a
statement of one fact (single factor) nor a series of such statements
(multiple factors) about crime is a theoretical explanation of crime. A
theoretical explanation, a single theory organizes and relates the
variables; it is an abstract statement of how the known variations in
the values of one variable are related to known variations in the values
of other variables. A test the theory is how well it accounts for all the
variations in the values of the variables.

2. Factors are not only confused with causes but each factor is also
assumed to contain within itself a capacity to produced crime, a fixed
amount of crime producing power. Thus one factor is not always
considered powerful enough to produce crime in individual cases
several factors must conspire to do so.
3. evil causes -evil fallacy this fallacy is that evil results (crime) must
have evil precedents (broken homes, psychopathic personality etc). so
that when we explain crime or other social problem we tend to merely
catalog a series of sordid and ugly circumstances which any decent
citizen would deplore and attribute causal power to those
circumstances. In criminology, this fallacious procedure might stem
from a desire to eradicate crime without changing other existing
conditions which we cherish and esteem; that is criminologists tend to
identify with the existing social order and seek causes of crime in
factors which might be eliminated without changing social
conditions which they hold dear, or which may be safely deplored
without hurting any ones feelings.



Crime is committed not only by persons below the marginal economic
stratum or those who suffer from physical or mental defects or those who
belong to a certain criminal environment. Crime is also committed by
white collar criminals, persons who commit crime within their
occupations or businesses. Certain professions offer lucrative opportunities
to commit crime and for unethical practices.
Professor Sutherland defines white collar crime as a crime committed by
persons of respectability and high social status in the course of their
Professor Gillin points out that the white collar criminals are intelligent
successful and men of high social status. They belong to the prestigious
group of the community.

Categories of White Collar Criminals

1. Politicians and Government/Public Servants

They are considered to be the custodians of the law and destiny of the
nation. The most common offence that they indulge in is in the
misappropriation of public funds/resources, with the aid of third parties e.g.
contractors, suppliers, employment of unqualified persons, over-
employment, payment of salaries and other benefits to non-existent workers
(ghost workers).

Grand corruption has bedeviled many governments and since the year
2000 the UN was already in a process of dealing with corruption within
public institutions. In the year 2000 it established and ad hoc committee
to look into an effective international legal instrument to fight against
corruption. The efforts were carried out under the International Office
for Drugs Control and Crime Prevention. This culminated into the
United Nations Convention against corruption held in Merida Mexico in
The key characteristics of this Convention are in the following articles:

Article 5
Stresses the importance of the critical issues of transparency anc
accountability in national legal institutions.

Article 9
Focuses on public procurement and calls upon the public authorities to
take necessary steps to establish appropriate systems of the procurement
based on transparency, competition and objective criteria in decision
making that are effective inter alia, in preventing corruption.
Article 10, highlights the issue of secrecy in public administration and
calls for the action to secure greater freedom of information.
Article 11, subsequently call on government to safeguard the integrity
and independence of the Judiciary by preventing opportunities for
Article 12 expressly, raises the issue of corporate governance by calling
for strengthening regulatory and legal action to curb private sector

Article 15/16
Decry the bribery of national and foreign governance officials and call
for action to stop such practice.

Article 33
Underscores the need to protect people who report acts of corruption.

Article 43
Stresses the need for co-operation to curb corruption and calls for the
strengthening actions.

Article 51
Provides for the return of assets to countries of origin as a fundamental
principal of the Convention.
The new Anti-Corruption and Economic CrimesAct and the Kenya
Public Servants Ethics Act both of 2003 deal with corruption which has
become the number one white collar crime in Kenya.
It is now generally accepted that corruption has a negative impact on
society. Globally institutions such as the World Bank, IMF and the UN
have conducted studies that show evidence that corruption tends to affect
the poor more severely therefore making them poorer with time. It
hinders economic development, reduces social services and diverts
investments in infrastructure and social services.
At the social level, corruption erodes the principles of democratic
governance resulting in abuse of human rights, political and social
instability etc.
Clearly even though corruption has always been an offence under the
Corruption Act, concerted efforts that can be seen now are singly as a
result of international interventions, by aid granting institutions and
countries. During the cold war aid politics were largely characterized by
loyalty and countries that were loyal to the capitalist west or communist
east did not have to show proper accountability of funds received from
the so called donors as long as they were loyal. Most of these countries
from the developing world having just emerged from colonialism were
often propped up to the detriment of political and economic governance.
The end of the cold war brought new dynamics into play and pressure for
aid to the newly liberated eastern bloc. Having overthrown their
dictators thereby increasing democratic space, they brought in a new pre-
requisite into aid, that of democratic governance. It was no longer
tenable for the aid giving countries to rely on ideological loyalty, nor to
be praising and welcoming new democratic leaders in the former Soviet
Union, while supporting despots in other developing countries.

In this new order, it was necessary to create legal frameworks of
international nature to ensure that international trade is not captured by a
few criminal elements through corruption. So whereas, at the local
level corruption directly results in poverty, at the international level it
leads to unfair competition or lack of it, it increases the cost of doing
business and distorts the picture of use of aid and international loans, and
may also lead to difficulty in repayment, in poor countries governments
may resort to the increase of taxes, and overtaxed populations do not over
political or economic stability which is required for trade to thrive.
High level corruption involves public officials who use their decision
making positions to subvert justice for economic or political gain.
Private sector represents the demand component of corruption.
Corruption networks sometimes operate in a similar fashion to organized


It is vested with the mandate to investigate, corrupt conduct, trace,
recover corruptly acquired public property, devise corruption prevention
mechanisms and educate the public on the dangers of corruption.
Whereas, the Commission has power to institute civil proceedings to
recover property, it does not have powers to institute criminal
prosecutions against perpetrators.

2. The medical profession

This category exhibits white collar crime through the procurement
of illegal abortions, administration of euthanasia, unnecessary
treatment and or surgical operations, splitting of medical fees with
patients whose health costs are covered by insurance or by employers,
exploitation of ignorant persons, this could be through medical
research, failing to abide by requisite ethical conduct of research that
use human volunteers, issuance of false medical certificates and
3. The police Force
The police are the custodians of law and order in society. They are
charged with apprehension, investigations and in many jurisdictions
the prosecution of offenders. In this regard they are likely to commit

the following crimes; pay offs to conceal crime generally, or evidence
specifically, cover ups, brutality to offenders etc.
4. Business men/Corporate Bodies

This category seeks to maximize its profit at the expense of and

without regard for the public. Crimes include failure to abide by
regulatory standards on safety and security and quality of products,
distortions of market forces, through hoarding, fraudulent or false
advertising practices.
5. Accountants/Tax Consultants

Crimes include assisting firms, companies and individuals in tax evasion,

preparing false or distorted returns, failing to disclose malpractices in
public quoted entities.
6. Engineers

Crimes include underhand dealing with contractors and suppliers, passing

off sub-standard work and materials etc.

With the advancement of time and technology criminal behavior has also
become more advanced. Organized criminals embrace criminality as a
profession to earn their livelihood. In so doing they organize themselves
into criminal gangs/outfits and carry out their anti-social activities with skill
and efficiency for profit or personal gain or in pursuance of certain political
ideals. Sutherland and Cressy refer to it as an organization of vices. At its
best, organized crime becomes and economy within an economy or
government within government.
The chief characteristics of organized crime are:
A hierarchical order
In organized crime there is a definite order or arrangement in the
control and functions of the daily activities.
Authority of the controlling group
The top management controls the whole organization and all
Treatment given to outsiders
Outsiders are not tolerated under any circumstances and will be
eliminated even on suspicion of having edged in.

Method of conducting crime
Each organization has a standardized method of committing crime as
well as definite rules of criminal conduct. It has its own laws,
customs and techniques. Before a particular crime is conducted, its
details are carefully worked out and looked into. This is a policy
matter which is the responsibility of the top management. After the
policy has been laid down, the actual job of carrying it out is given to
a few people in the organization. In this coordinated manner, the
criminal act is carried out.
Essential outsiders
In every criminal organization, there are persons who do not directly
participate in crime activities but who give protection to members of
the gang, some such outsiders, are advocates, politicians. Protection
may also be induced through corruption from law enforcement
officials e.g. police officers, state lawyers and judicial officers.
Organized crime has been compared to a multi national corporation.
It deals with:
1. Predatory crimes hijacking, business, racketeering, terrorism,
2. demand oriented crimes criminal activities which are highly
desired by some sections of the community e.g. gambling,
narcotics, prostitution(adult and child), slavery
3. the penetration of legitimate business by organized crime e.g.
trade unions, state corporations

This is a situation where a minor revolts/rebels against authority and breaks
laws and regulations as laid down by society, the state or the family. The
causes of juvenile delinquency are:
1. parental discord
2. unhappy home backgrounds
3. wrong parental attitudes
4. poverty
5. industrialization

The family plays the following roles:

1. It provides organic sustenance and habit training for the juvenile
2. It provides primary growth association for the juvenile so that he can
socialize in interpersonal relationships

3. It is the major avenue for the transformation of values, knowledge and
According to Professor Sutherland, the types of families and homes leading
to delinquency can be categorized as follows:
Where other members of the family are criminally inclined,
alcoholic or immoral
Absence of one or both parents through death, divorce,
separation or desertion
Lack of parental control through ignorance or other factors, lack
of awareness or knowledge on parental techniques
Racial or religious differences including differences in the
standards of living
Economic problems such as unemployment, insufficient income
which sometimes forces one or both parents to be absent from
Statistics indicated that where one or more members of a family are
criminal, especially the parents, the young ones are likely to become
delinquent. Other factors include psychology, and other emotional stresses
within the family. These may arise out of favoritism, rejection, rigidity and
harshness of the parents and hardships.

His study revealed that 54% of the studied delinquents had run away
from home due to emotional stress and psychological stress within the
family. A girl who finds no affection at home compensates for it with
relationships. If she does not find affection within them she may
engage in illicit activities including prostitutions.
The rates of delinquency tend to be higher in families with combined
older brothers with younger brothers and sisters. Girls with older
brothers and sisters register higher rates of crime than those with older
sisters and no brothers.
Juvenile delinquency may be influenced by the environment e.g.
Films, videos, TV programmes, and other literature
School environment

He conducted a study on delinquent girls. He concluded that girls and
women offend the law much less frequently as do boys and men. When they

do so, by and large, the delinquency does not take the form of aggressive
and socially destructive qualities as that of males. A few girls who fall into
delinquency have certain characteristics:
1. they would be physically impaired
2. oversize
3. lumpish
4. uncouth
5. graceless

Juvenile Systems and Courts

The development of juvenile courts can be traced to a better understanding
of the idea of criminal responsibility and the recognition that the factor of
age or youth overcame the previously upheld notion or idea of complete or
total responsibility of the acts of a young person.

Roscoe Pound
Juvenile court brought individualized judging. It recognizes the special
circumstances of a particular juvenile. It is a legal tribunal where the law
and science especially that of medicine and others dealing with human
behavior biology, sociology and psychology worked side by side with the
sole aim of remedying and to a degree presenting delinquency rather than
punishing it.
Coupled with the development of the juvenile court there was a movement
to provide a separated institution for the young offenders e.g. borstal homes,
juvenile remands, approved schools, and probation centers etc.

According to him; there is no leper in the world so contagious as the
hardened offender and the accustomed prisoner. Any newcomer to prison
should be kept away from him. Still more urgent is that the newcomer who
is in no way a criminal should never cross his path and certainly should not
consult with him on a daily basis.

This connotes persistent indulgence in crime. These are offenders who are
jailed, released, re-arrested and re-sentenced. These offenders have a long
criminal record, have been frequent inmates of penal or correctional
institutions and show scant regard for institutional adjustment.

Causes of Recidivism
According to Professor Sutherland, the main causes of recidivism are:
I. the social psychology of the offender;
II. inadequacy of the reformative techniques.

On the first point, he was of the view that urbanized regions are more
conducive to recidivism than rural areas. Factors such as higher cost of
living; slums and congestion offer sufficient opportunities for offenders to
commit crime unnoticed for years. Criminality therefore becomes a habit
and they eventually become recidivists.
Some penologists argue that continued isolation of an inmate from normal
society due to a long stay in prison renders him unfit for normal life release.
He therefore prefers the routine prison life to which he is accustomed.
The prisoner may also suffer from inferiority complex, feeling that law
abiding members of society look at him with suspicion and distrust.
According to Prof Sutherland, reformative measures are also inadequate.
Probation, parole and short term sentences have become inefficient. It is
argued that short- term sentences and other minor punishment means the
incessant coming and going of habitual delinquents.

Measures to combat recidivism

Look at the different schools

Penology is the study of punishment and the treatment of offenders. It
concerns itself with the events that follow after the conviction of the
offender. There is a close relationship between criminology and crime.
Criminology focuses on the causes of crime and delinquency. The objective
is a better understanding of crime and criminality with the goal of crime
prevention. Knowledge of the factors that cause crime helps the state, state
agencies, social workers, law enforcement officials to eliminate to some
degree the said conducive factors.

Penology is concerned with crime prevention and control. It focuses on the
response of society to delinquent and criminal acts. The response includes
within its scope legal and extra legal procedures for handling delinquents
and criminal offenders as well as the methods dvised for the prevention and
control of delinquency and crime.
For us to react positively and effectively to criminal acts, we should be able
to understand the causes of the acts, (i.e. through the understanding of
criminology). It would help in determining the most effective methods and
procedures for handling and treating offenders as well as preventing crime in
The causes of crime must be understaood in order to deal effectively with
crime and criminals. For example where acts are done maliciously, the
offender should be handled or treated harshly or severely, e.g. in the case of
murder, robbery with violence and rape. In cases of acts done out of
desperation such as stealing to feed ones children the offender should be
treated more humanely and leniently.

Where the act is influenced by the impact of the social processes on

individual behavior, the offender should be dealt with compassionately. This
is because the act has more to do with changes in society than his own free
The manner in which society treats its offenders is an important mechanism
through which it attempts t achieve its social goals. There is however no
agreement on what these goals or objects are or should be. Some
penologists hold the view that society can only be protected by punishing the
criminals. Others regard criminals as victims of social or economic and
psychological forces in society. The proponents of this view argue that since
society creates deviants it has a moral obligation to make amends and treat
them with compassionately and with understanding in order to salvage and
rehabilitate them.

Throughout history, humanities approach to the treatment of criminals can

be summarized as follows:
Treatment of offenders has historically been characterized by punishment.
However, modern trends as influenced by various schools of thought

(sociological, positivist, etc) lay emphasis on reformation and re-
socialization of the offender.

Treatment of crime and criminals in African Customary law

Traditional social control, the prevention and control of criminal behaviour
in traditional African societies was based on kinship and the extended family
system. The family was therefore a very central institution in social order.
Starting from the family to unit to the highest level of African customary
systems of governance, whether it was the centrally organized Kingdoms of
Uganda, West Africa etc or the tribal chieftaincies of the Kikuyus, etc,
collective responsibility was key to social order. most African societies, legal rights and duties are primarily attached
to a group rather than to individuals. The individual plays a relatively
subordinate role. Very often, the members of the group, as individuals, are
only users of collective rights belonging to the family, lineage, clan, tribe, or
ethnic group as a whole. A law-breaking individual thus transforms his
group into a law breaking group, for in his dealings with others, he never
stands alone. In the same vein, a disputing individual transforms his group
into a disputing group and it follows that if he is wronged, the may depend
upon his group for vengeance, for in some vicarious manner, they too have
been wronged. (Igbokwe, Virtus Chitoo, Social-Cultural Dimensions of
Dispute Resolution: Informal Justice Processes among the Ibo-Speaking
Peoples of Eastern Nigeria and their Implications for
Community/Neighbouring Justice System in North America African Journal
of International and Comparative Law, Vol. 10,1998 pg 446-471 at page 449-50.
This is not to say that group law in the traditional African context is to be
While there is a measure of truth in this view of the idea of liability for
wrongs, it is inaccurate in so far as it assumes that jurisprudence in Africa
does not distinguish between primary and secondary liability for offences
against the law. No doubt, African sentiments attach great weight to the
solidarity of the group as a necessary condition of the maintenance of the
social equilibrium of the local community. Thus, it is common for
memberes of the group to make loans of surplus lands, cattle or crops to one
another in times of scarcity or misfortune; and it is also natural that, if one of
their number should incur the penalty of the payment of blood-money or
compensation, other members of his group or family would come to his aied
in meetings such an obligation. There is no doubt whatsoever in the minds
of these other members, and certainly not in the customoary law on the
subject that the primary liability is that of the wrongdoer himself alone, and

that the other members are merely assuming secondary liability if the fails to
pay either in part or as a whole. It is considered by the wrongdoers kitha dn
kin a matter of family pride that none of their members legal obligations be
allowed to remain outstanding in relation to the wronged family. (Elias T O
Traditional Forms of Public Participation in Social Defence: International
Review of Criminal Policy, No 27 1969, 18-24 at page 19.
As a result of this very communal and collective governance system, there
was little distinction between civil and criminal cases. Both criminal and
civil cases were dealt with in pretty much the same manner. The law was
therefore dominated by the idea of compensation to counter-balance and
restore equilibrium in society. Cases such as murder, assault and rape were
redressed by compensation. Payment of fines or costs to the elders
concerned in the settling of disputes whether criminal or civil was the
accepted practice in African societies. African customary law focused on
reconciliation as means of restoring the social balance upset by the criminal
act. However, there were violent punishments in some instances, depending
on the nature and gravity of offences e.g. corporal punishment, mutilation,
torture, flogging, banishment, and execution.
Traditional societies employed the following modes of dealing crime and
1. Reconciliation between the offender, the victim and their families
2. Restitution of stolen or misappropriated property
3. Compensation to the victim or his family by the offender or his family
4. Compensation paid to the community as a whole, mainly through
elders or chiefs by way of fines or costs
5. Corporal punishment for serious offenders or for persons not
amenable to fines owing to poverty
6. Capital punishment was reserved for serious offences such as
7. Social ostracism public ridicule sometimes an offender would be
tied up to restrict movement
8. Religious sanctions to protect the community from the hostility of the
gods, spirits, e.g. through the offering of sacrifices
9. Expulsion of the offender from the community in serious cases
which did not warrant execution outlawing

African customary criminal law is not applicable in modern Kenya as it has

been excluded from written law. Section 3(1) of the Judicature Act
expressly provides that African Customary law is only applicable in civil
cases. Section 77(8) of the Constitution of Kenya prohibits the conviction of

a person of a crime unless that offence is defined and its penalty prescribed
in written law.


Punishment of wrongdoers is as old as wrongdoing and as old as society
itself. In society there has always been behavior that is socially approved and
considered as good and proper by the majority of the people. Similarly there
has always been an aspect of social behavior that hurt or injured the feelings
of members of the same group. In most human societies today there are
rules that have been codified and set as laws whose main purpose is the
maintenance of order among human beings. Consequently, the violations of
these laws calls for societal reaction. Societal reaction in most cases takes
the form of punishment. Punishment is therefore one of the devices for
treating offenders to which society resorts to restore harmony or repair the
damage done by the violation of the law.

Thomas Hobbes
He defines punishment as an evil afflicted by a public authority on him that
has done or omitted that which is adjudged by the same authority to be a
transgression of the law; to the end that the will of men may thereby be
disposed to obedience.

Wolf Middendorff
He defines punishment as an unpleasant consequence which penal law
prescribes for socially undesired human conduct and which courts impose
according to the laws of penal procedure.

Sir Rupert Cross

He defines punishment as the affliction of pain by the state on someone
convicted of an offence.

According to him a person is said to be punishment when some pain is
afflicted on him. That pain may take the form of imprisonment, fines,
forfeiture of property or some other restriction or detriment imposed by
society as a mark of its disapproval of the act or omission of the individual

Sutherland and Cressy
Two essential ideas contained in the concept of punishment as an instrument
of public justice;
1. It is inflicted by the group in its coporate capacity upon one who is
regarded as a member of the same group. The loss of status which
often follows crime is not punishment, except in so far as it is
administered by the group in its corporate capacity.
2. Punishment involves pain or suffering produced by design and
justified by some value that the suffering is assumed to have. This is
the conventional conception as used in criminal law. If the suffering
is merely accidental, to be avoided if possible, it is not punishment.

According to him, three components must be present if punishment is to act
as a reasonable means of checking crime:
I. Speedy and inescapable detection and prosecution
II. After punishment, the offender must have a chance for a fresh start.
Thus punishment should not import any stigma on the offender.
III. The state which claims the right of punishment must uphold superior

He defines punishment as follows:
1. It must involve pain or some other consequence normally considered
2. It must be for an offence against legal rules
3. it must be imposed on an actual offender for his offence
4. it must be properly administered by human beings other than the
5. there must be a spirit of reform behind the punishment
6. it must be imposed and administered by an authority constituted by a
legal system against which the offence is committed
7. It must be imposed for the dominant purpose of preventing offences
against legal rules.
The study of treatment of offenders initially focused exclusively on
punishment and excluded other ways of dealing with offenders. However,
modern approaches to criminology focus on the role of society and social
pressures on the making of criminal offenders. Penologists have thereby
been forced to look beyond punishment.

Where did the right to punish spring from? The right to punish is vested in
the state or public authority. Lawful punishment is afflicted by the state.
Where does the state derive the power to punish?
According to Hobbes, before the emergence of the entity of the state, every
man had a right to everything and to do whatever he thought necessary for
his own preservation, including hurting, maiming or killing other human
beings. Man was at this time a free agent.
The emergence of the family unit led to communalism. Family and clan
units got together and worked as a group to protect their interests and rights.
From communalism, society moved to the state. With the establishment of
the state acceded some of his rights to the state. He however retained the
right to self defence. The states right to punish is not grounded on any gift
or concession by the citizens. The citizenry abandoned the right to punish in
order to strengthen the hand of the sovereign. According to Hobbes for
anything to be properly called a punishment it must possess certain qualities
and any other act lacking these qualities but inflicting pain would be an act
of hostility.
It therefore follows that:
a. Private revenge and injuries inflicted by private men are not legally
speaking punishment. They are not sanctioned by a public authority.
They do not stem from the state.
b. Social ostracism where society ostracizes, ignores or neglects an
offender this does not amount to punishment.
c. The act of punishment must be preceded by public condemnation as
judged by a public authority. This disqualifies mob justice as
punishment on the basis that the public condemnation of the offender
is not judged by a public authority. It is lacking in state approval.
d. Punishment must be styled by a legitimate public authority. It must
be pronounced by the appropriate public authority and meted out by
the appropriate authority. Punishment inflicted by means of usurped
authority or power or by a judge who has no authority is an act of
hostility because the person condemned and the society in general
have not delegated authority to these people.
e. Punishment must have a justification or end. Any punishment that ha
no possibility of rectifying the delinquent or has no deterrence value
on the offender is an act of hostility.
f. Divine punishment i.e. from nature or God is legally speaking not
punishment, because it is not inflicted by authority of man.
g. Punishment must fit the crime. If the harm inflicted is less than the
benefit or contentment that naturally flows from the crime committed,

then the harm on the offender does not amount to punishment. Where
the harm is less than the crime, the offender would enjoy some
residual benefit.
h. Punishment should not exceed that which is prescribed.
i. Harm inflicted for an act done before there was a law forbidding it is
not punishment because there is no transgression of the law. Thus,
criminal law does not apply retrogressively.

Philosophers and penologists have over the years advanced diverse
explanations or justifications for punishment.
According to Sir Rupert Cross, (The English Sentencing System, 1981,
Butterworths, 3rd Edition), at page 120)
In many ways it is a pity that the word theories ever came to be employed
to describe the moral justifications of the practice of punishing with varying
degrees of severity..As punishment entails the deliberate infliction
of pain, it certainly needs to be justified morally, but the use of the word
theory is unfortunate for at least two reasons. In the first place, it suggests
that one theory must be right to the exclusion of all others whereas, as will
appear shortly, it may well be the case that neither retributive theories
standing alone nor utilitarian theories standing alone can provide an
adequate answer to any major questions that are commonly raised with
regards to punishment. The second objection to the use of the expression
theories of punishment is that it tends to produce interminable and
inconclusive discussions concerning the correctness of any one of them
There is no consensus on which explanations or theory best justifies
punishment in society. The historical approach to crime and criminals has
undergone tremendous change.
According to Gerhard Muller, punishment has undergone four distinct eras:
a. Era of retribution revenge, repression, rejection
b. Utilitarian era rehabilitation, reintegration,
c. Era of humanism
d. Era of nihilism nothing works as expected

Earlier penologist and criminologists advocated for punishment with the sole
aim of inflicting pain on the offender. The proponents of the retributive
theory sought only to punish the offender. It was hoped that by inflicting
pain on the offender as repressive means allowed or stipulated both the
offender and the entire society in general would be deterred. However, this

proved to be untrue. Retributive punishment did not yield the desired effect.
It was argued that such punishment was inhuman, barbaric and tended to
focus on the offence committed rather than the offender.
These criticisms of the retributive theory led to a new approach to
punishment. Punishment began to be seen as that which should not only be
retributive but also produce a desired effect upon both the offender and the
society in general. This saw the evolution of utilitarian theories markedly
those of reformation, incapacitation or restraint and reintegration.
Focus shifted from the offence to the offender. It was argued that the
offenders did not necessarily have a criminal mind but that other factors led
to criminality. These included social, economic and even political factors.
In order to rid society of crime it was therefore necessary to address such
other factors that influenced criminality. Punishment was therefore viewed
as a curative measure. Thus, in addition to the other retributive forms of
punishment capital and corporal there also evolved prisons which were
intended for the solitary confinement of offenders. While in that condition
prisoners were likely to meditate on their evil ways and change to better
persons who were likely to reintegrate into society once their prison terms
were over.
With time, however, prisons, which were intended to remedy the defects of
retributive forms of punishment changed for the worse. They became
harbors for vice. Living conditions became inhuman. Offenders once out of
prison were worse off. They became embittered against society and tended
to revert back to crime. There was therefore need for the evolution of yet
other forms of punishment that catered for the changing needs of society.
Penologist today therefore advocate for non-custodial remedies such as
probation, parole, discharge, community service orders, fines etc that seek to
punish, rehabilitate and heal the offender in such a way that he will not
revert to crime.
They argue that capital punishment and corporal punishment are inhuman
and barbaric and ought to be abolished while prison sentences should be
maintained for serious offences only.

This is the most ancient method for dealing with offenders dating to the pre-
classical period. It is retributive and revengeful in nature. This approach to
punishment rests on the idea that a person whose conduct appears to have
caused social harm should be held responsible for the harm. It is right that
the wicked be punished. The punishments therefore tended to be more
inhuman and sadistic. They usually consisted of banishment, mutilation of

limbs, whipping, flogging branding, various forms of torture and death.
There was usually no attempt to relate the nature of punishment to either the
offence or the offender. In earlier times penal law allowed the infliction of
greater injury on an offender that that which he inflicted on his victim.
Later, penologists called for more humane treatment of offenders anad the
older approaches were replaced by codes that advocated for nothing more
than eye for an eye and a tooth for a tooth. Its proponents argue that
punishment for wrongdoing is intrinsic in value. It is just notwithstanding
any other benefits e.g. crime prevention. To them punishment should not be
for any other purpose than restoring the moral balance that is disturbed by
the crime. The imbalance would remain if the criminal goes scot-free.
Punishing him would give satisfaction to the victim and society.
According to Emmanuel Kant, the full moral balance is restored when the
offender is punished and the victim compensated. In his view, punishment is
a reward, compensation a kind of annulment to a crime.
The basis of retribution seems to be societal revenge. An offender should be
made to suffer not so much because it is good for him but because he
deserves to suffer. According to Kant, punishment must always be inflicted
upon the offender for the sole reason that he committed a crime.
According to Sir James Stephen, it is highly desirable that criminals should
be hated, that punishment should be so contrived as to give expression to
that hatred, and to justify it. To these penologists punishment should fit the
crime and the offender should get what he justly deserves.
There are two components to the retributive theory:

This is the sense of the societys claim to amend for the harm done or for the
outraged feelings. In its crudest form the first kind of vindication justifies
punishment on the ground that it tends to satisfy the victims need for
vengeance. More refined notions are the satisfaction of the victims sense of
justice or the satisfaction of the feelings of resentment of the victim, his
friends, as well as others who are aware of the crime.
Bentham (Principles of Morals and Legislation)
A kind of collateral end, which it (punishment) has a natural tendency to
answer is that of affording a pleasure or satisfaction to the party injured,
where there is one, and in general, to parties whose ill will whether on a self
regarding account, or on account of sympathy or antipathy has been excited
by the offence. This purpose, as far as it can be answered gratis, is a
beneficial one. But no punishment ought to be allotted merely to this
purpose, because (setting aside its effects in the way of control) no such

pleasure is ever produced by punishment as can be equivalent to the pain.
The punishment, however, which is allotted by other purposes, ought as far
as it can be done without expense to be accommodated to this. Satisfaction
thus administered to a party injured in the shape of a dis-social pleasure amy
be styled a vindicative satisfaction or compensation.

Williams 1974 Crim LR 558

Two young men who had been drinking pleaded guilty to buggery to a
In handing down sentence, the trial judge stated as follows:
I fully appreciate that it is going to be a matter of comment about you for
years to come and I think the kindest thing I can do is to visit upon you the
outrage which I think anybody with decent feelings would feel about it so
that nobody can say, in your village, that you havent paid for it.

Llewellyn Jones (1968) QB 429

A deputy County Court Registrar was convicted of offences involving
conversion of funds under his control belonging respectively to a crippled
infant and a mental patient. The trial judge sentenced him to 4 years
imprisonment. On appeal it was argued that heavy punishment was not
called for on deterrent grounds, it was unlikely that the accused would ever
again be in a position to commit such offences, and other deputy county
court registrars scarcely needed powerful warning by example in order to
deter them from converting funds under their control.

Court of Appeal
This Court is quite satisfied that this is not a deterrent sentence. It is a
sentence which is fully merited, in a the opinion of this Court, as punishment
for very grave offences, and as expressing the revulsion for the public to the
whole circumstances of the case.

This component emanates from the belief that there is a sense in which the
criminal gains advantage over the law abiding citizen every time he commits
an offence.
This is especially so in cases of successful acquisitive crimes. In other cases
it may also be argued that the law abiding citizen may have derived some
satisfaction from committing the offence but they abstained especially where
similar opportunities may have been available to them. Punishment in this
case serves to demonstrate to the offender as well the law abiding citizen

that threats of the law will take effect, and that taking advantage of the self
restraint of others cannot be done with impunity.
The question of fairness, is viewed as a matter between the state and the
offender, the trend has therefore been that punishment of serious crimes
should not be determined by the wishes of a particular victim. It therefore
follows that if the sole aim of punishment was just vindication for the
victims injury, then punishment ought not to be metted out where the victim
forgives the offender. In general the courts therefore consider the victims
attitude irrelevant to accused punishment because the accused has to be
punished for flouting the law.

Hampton (1965) Crim. LR 564

Hampton aged 27 years had been convicted of rape of an 18 year old girl.
She had permitted familiarities on the occasion, but clearly did not consent
to the intercourse and reported the incident to the police immediately
afterwards. On hearing that Hampton had been sentenced to 3 years
imprisonment, the girl wrote to the Court of Appeal saying that she was
shocked by the result, that she had no idea that this would be the
consequence of her action and that the had told the accused before the
incident that she would have intercourse with him sometime in the future.
The sentence was upheld and the Court of Appeal remarked as follows:
It might well be true that she had no idea of the serious view that the Courts
take of the crime of rape on young girls. But her misgivings could not
afford any justification for altering a sentence which was right in principle
and in fact well deserved.

In Buchanan (1980) Crim. LR 317

The Court of Appeal upheld a sentence of two years for wounding with
intent the woman with whom the appellant had been living, despite her
express forgiveness and willingness to resume her life with him.
According Sir Rupert Cross, in general the offenders wickedness nor his
danger to others is reduced by the forgiveness of this particular victim, and
the Courts are usually right to approach these cases with the interests of
society as a whole as a the primary consideration. Consider this approach
within the context of the statutory provisions for the production and
consideration of victim impact statements in Kenya.

Whereas, vindication and fairness provide partial answers to the question of
why punish. Proportionality attempts to address the issue of how much

punishment should be inflicted. The general answer is that it be as much as
is deserved for the offence no more no less. How is this to measured. Is it in
reference to quantity of punishment and moral deserts of the offender.
Sentencers generally think in terms of a complex notion which they will
frequently describe as the gravity of the offence. Such a definition may
reasonably include wickedness and the extent that punishment is measured
proportionately to the wickedness implicit in the definition of the offence, or
indicated by particular circumstances. Gravity may also include reference to
the amount of harm done by the offender and the extent that such harm was
inflicted intentionally or negligently. Whereas, these may fall within the
ambit of moral desert, gravity is sometimes measured by other
considerations which have feature social rather than moral significance.
Example is the alarm caused by a particular category of offence, i.e. burglary
and handling are not morally worse sentences than theft, but the maximum
sentences are higher each case.
Criticism of this exercise of attempting to come up with the retributive
theory in this regard is that an attempt to inflict pain commensurate to the
crime is a futile endeavor to equate incommensurables. In other words what
is the sense of taking about proportionality of fine to term of imprisonment
to assault or theft.
Hegel in the Philosophy of Right has tried to justify and explain this
approach. His point was that though they may differ greatly in form, crime
and punishment resemble each other in that they each a species of injury.
the universal feeling of nations and individuals about crime is and has
been that it deserves punishment, that as the criminal has done, so should it
be done to him
But a great difficulty has been introduced into the idea of retribution by the
category of equality.
.is easy enough from this point of view to exhibit the retributive
character of punishment as an absurdity (theft for theft, robbery for robbery,
an eye for an eye, a tooth for a tooth then you can go on to suppose that the
criminal has only one eye or no teeth).Value, as the inner quality of things
which in their outward existence are specifically different from one another
in every way, is a category which has appeared already, in connection with
contracts, and also in connection with injuries that subject of civil suits.In
crime, as that which is characterized at bottom by the infinite aspect of the
deed, the purely external specific character vanishes all the more obviously,
and equality remains the fundamental regulator or the essential thing, to wit
the deserts of the criminal, though not for the specific external form which
the payment of those deserts may take. It is only in respect of that form that

there is plain inequality between theft and robbery on the one hand, and
fines, imprisonment, e.t.c on the other. In respect of their value, however,
i.e. in respect of their universal property of being injuries, they are

Even if crime and punishment are each regarded as species of injury, there
remains the question of the feasibility of measuring proportionality between
them in terms of magnitude of a fine or the duration of a prison sentence.
The procedure would entirely be unfeasible if its object were thought of as
the production of a precisely correct sentence for each offence in isolation
from all others. But it is perfectly feasible if the object is recognized as the
attempt to equate the size of a fine or length of prison term to the gravity of
the particular category of offences with other categories (theft and murder0
and the gravity of the circumstances under which the offence was committed
with offences of same category ( rape where the victim is viewed to have
acted to some extent as a temptress as contrasted with rape in which the
victim was waylaid and subjected to great violence.

Hegel states as follows

Reason cannot determine, nor can the concept provide any principle whose
application could decide whether justice requires for an offence (i) a
corporal punishment of forty lashes or thirty-nine, or (ii) a fine of five
dollars, or four dollars ninety-three, four etc cents, days, or (iii)
imprisonment of a year three hundred and sixty-four, three, etc, days, or one
year and one, two , or three days. And yet injustice is done at once if there is
one lash too many, or one dollar or one cent, one week in prison or day, too
many or too few.
Hegel acknowledged that allowance has to be made for an element of
arbitrariness, i.e. the fact that a decision has to be made one way or the other
within certain fairly clearly defined limits. Usually courts are quick to react
where such limits are exceeded.

Disbrey (1967) Crim LR 431

The appellant was sentenced to 3 years imprisonment for receiving and
fraudulently using a stolen excise license. Nothwithstanding his bad record
and the fact that the offence was committed in the course of his employment,
the sentence was reduced to 6 months.
Salmon LJ stated thus:
This court does not want to minimize the seriousness of the offences of
receiving excise licences and using them fraudulently, but to send a man to

prison for three years for doing that seems to this Court to be beyond

Riddle and Stevens

The accused persons were sentenced to fines of 20 sterling pounds for
assaults causing actual bodily harm, they appealed against conviction but not

Salmon LJ
No doubt there are crimes against property which, in exceptional
circumstances, enable justice to be tempered by mercy and first offenders to
be treated with extreme leniency. But crimes of violence are altogether
different in kind. These appellants were members of a gang which in brutal
and cowardly fashion, set on a man standing alone, and proceeded to kick
him as he lay unconscious..In such circumstances the appellant would, or
should have been sentenced to long terms of imprisonmentThey are all
young with no previous convictions. Even so in circumstances such as these
to impose the most derisory fines of 20 and 25 is a travesty of the proper
administration of justice.
The retributive theory is grounded on a number of assumptions;
a) That the culpability or responsibility for the an offence is
punished and it is hoped that the penalty given produces
equivalent satisfaction to the aggrieved party,
b) That the punishment is similar or as close as possible to the
injury occasioned on the victim;
c) That the criminal is punished because he was fully responsible
and he committed the offence with full knowledge;
d) That the criminal has benefited from the crime.

The theory has a number of shortcomings;

a) At the intellectual level, retribution is a dying theory. Modern penal
theory is based on the idea of corrective or rehabilitative measures and
cannot tolerate bloddy methods of punishment. Modhern human
rights lobbyists are fighting for the abolition of punishment which
involves physical torture. Many forms of punishment based on
retribution like capital punishment and corporal punishment are being
phased out.
b) The fact that a person has committed a crime does not always mean
that the person has a truly criminal mind i.e. that he is inclined to evil

or immoral acts. Circumstances may have an effect on the person e.g.
poverty, age, state of mind.
c) The victim may not be interested in revenge. Thus revenge may not
achieve Kants moral balance.
d) There being no foolproof method of determining those who are guilty,
vengeful punishment may be directed at the innocent.

The underlying assumption of these theories is that crime must be prevented
as economically in terms of the suffering of the offender as possible.

The objectives of punishment according to this theory is

a) to make the guilty man or the offender a better
person and by extension the community better;
b) to improve society by either isolating or reforming
the offender
They justify punishment only if it can be shown to be of some utility to the
society. It is a curative theory. It is supported by thinkers such as Plato,
Aristotle, and Mahatma Gadhi, who actually saw punishment a bitter pill
that would cure all criminal tendencies. The are various theories of
punishment falling under this broad category, including deterrence, public
education, disablement and reformation as well as prevention.

This is the preventive effect that actual or threatened punishment has on an
offender or potential offender in a given society. It is an ancient theory.
John Salmond believes that punishment must be deterrent. The main aim of
criminal law should be to make the wrongdoer an example and warning to
all who are like-minded.
William the Conqueror of England is reported to have decreed that no one
shall be killed or hung for misdeed but rather that his eyes be plucked out
and his feet, hands and testicles cut off so that whatever part of his body
remains will be a living sign to all of his crime and iniquity.
There is a close connection between deterrence and retributive forms of
punishment. Retributive punishment is believed to have some deterrent
value. Deterrence is meant to reduce crime and for this reason some

penologists argue that the harsher or more horrid the punishment the more
effective the deterrence.
Cesare Beccaria the Italian criminologist argued against the severity of
punishment saying that punishment was not to provide a social revenge on
the criminal and it was not the severity but the certainty and expedition in
punishment that secured the best results for deterrence.
Deterrence is at two distinct levels individual and general
Individual deterrence
The idea here is that the offender should be given such an unpleasant time
that through the fear of a repetition of punishment he will never repeat his
conduct. There are limiting factors however. The retribution theory insists
that punishment should not be disproportionate to the offenders deserts, the
utilitarian insists that the punishment must be no more than is necessary to
achieve its deterrent effect, sheer expediency on the other hand insists that
the punishment shall not be such as to make the offender an object public
sympathy. Rev Sydney Smith (1771 -1845) whose views on punishment
were notoriously harsh was aware of these limitations and stated thus:
When we recommend severity, we recommend, of course, that degree of
severity which will not excite compassion for the sufferer and lessen the
horror of the crime. That is why we do not recommend torture and
amputation of limbs. Cited in the The Modern Approach to Criminal Law
by Radzinowcz and Turner at page 40.
The current penological view is that one sentence of imprisonment is enough
for the majority of offenders: It is widely viewed by conjecture that the first
prison sentence is the most traumatic. The initial impact of prison life is
therefore thought to be a powerful individual deterrent.
At a personal level punishment serves as a lesson and warning to the
offender himself. It removes him from the environment where he would
commit crime (restrains him).

When reliance is placed on general deterrence, the aim of punishment is
thought of as the discouragement of like minded persons from committing
offence by the threat of punishment and the example of the punishment of
the offender.
At a general level, it deters other like minded persons from committing
similar offences. This theory is illustrated in the case of R vs Atma Singh s/o
Sharda Singh 1943 E.A.C.A 69
The appellant an elderly Sikh man appealed against conviction and sentence
on the charge of causing grievous bodily harm to his wife. The brief facts

were that the appellants wife had been enticed by another man, upon which
she left their matrimonial home in Mombasa, to live with her new man in
Nairobi. The appellant followed her there and managed to take her back to
Mombasa, and thereupon cut off her nose and ears. He was tried and
sentenced to 7 years imprisonment with hard labour. On appeal the sentence
was affirmed. Describing the assault as barbaric and therefore one that
needed punishment that would lead to deterrence, the judges further stated
that for purposes of deterrence a lesser sentence would be misunderstood.
In R vs Mudanya Kazengwa 1979 KLR 48, the accused an Inspector of Weights
was charged with Corruption c/s 3 of the then Prevention of Corruption Act.
The facts were that he corruptly received Kshs 600 as inducement not to
prosecute a man for hoarding tea. Under the section the offence carried a
maximum penalty of seven years imprisonment or a fine of Kshs 10,000 or
both for first offenders. He pleaded guilty and was sentenced to a fine of
Kshs 5,000 or 6 months imprisonment. The magistrate based the sentence
on various mitigating factors including;
c) the accused was likely to loose his job
d) the accused had a family to support
e) he was repentant and apologetic

On appeal it was held that the sentence meted out by the lower court could
serve to encourage the commission of the offence. The sentence was set
aside and replaced with one of 4 years imprisonment.

Daher, 1969 53 Cr.App R 490

A 19 year old Lebanese student was sentenced to 3 years for importation of
cannabis. Daher, who was previously of good conduct had been induced to
become a runner of some Lebanese drugs exporters by the promise of money
and a short holiday in England in addition to the payment of his airfare; they
also promised assistance to his impoverished family. On arrival in England
he was found with cannabis worth 3500 sterling pounds in his suitcase.

Salmon J
If a young man such as the appellant is given six months suspended
sentence, back he goes whence he came and the news spreads like wildfire
amongst all students. Well, this is not a bad way of trying to get money
because if it comes off you will just be sent home again. On the other hand,
if it is known among potential offenders in the Lebanon and elsewhere that,
if they are caught attempting to smuggle drugs into this country, they will be

severely dealt with, there may be a remarkable lack of enthusiasm for
enterprises of this kind and great difficulties put in the way of people who
run this filthy trade.
There is however, growing skepticism about the deterrent effect of either the
threat or example of punishment. There are difficulties of conducting
satisfactory research into the deterrent effect of particular sentencing
policies. A survey of young men carried out by Willcock and Stokes in
1968, suggested that most people overate their chances of detection and rank
fear of what others will think above fear of punishment as a deterrent.
Courts however, continue to find usefulness for general deterrence in

Long deterrence/denunciation or education

The deterrent theories already considered so far may be said to be deterrent
in the short term. This is in the sense that the threat or example of
punishment is supposed to operate immediately on those contemplating
crime. The educative or denunciative theory may be described as long term
in nature. It justifies punishment on the ground that it helps maintain
peoples standards. The fact that people are punished for crimes is believed
to build abhorrence for it over a period of years and thus to reduce the
number of those who would even remotely consider it. A proponent of this
approach is Sir James Stephen ( History of Criminal Law vol. II at page 79)
If in all cases criminal law were regarded only as a direct appeal to the
fears of persons likely to commit crimes, it would be deprived of a large part
of its efficacy, for it operates, not only on the fears of criminals, but upon the
habitual sentiments of those who are not criminals. A great part of the
general detestation of crime which happily prevails among the decent part of
the community in all civilized countries arises from the fact that the
commission of offences is associated in all such communities with the
solemn deliberate infliction of punishment wherever crime is proved.
Another proponent of this contention that punishment may be justified as an
attempt at the moral education of the offender as well as others; is Dr. A.C.
Ewing in The Morality of Punishment published in 1929 stated as follows:
Now the existence of a penal law is an impressive condemnation of the
practice prohibited by it. But surely this solemn, public condemnation on
behalf of the community will have some effect not only on those actually
punished but on others also. If it may help the offender to realize the
badness of his action, may it not help others to realize this badness before
they have committed the kind of act in question at all? This must not be

confused with a purely deterrent effect. A man who abstains from crime just
because he is deterred abstains through fear of suffering and not because he
thinks it wicked; a man who abstains because the condemnation of the crime
by society and the state has brought its wickedness home to him abstains
from moral motives and not merely from the fear of unpleasant
consequences to himself.
The negative version of this theory is that failure to punish a crime
adequately will depreciate its seriousness. This could partly explain the
remarks made by judges in the cases that we have already looked at.
In this regard the theory has both retributive and utilitarian features

Goodhart, The English Law and the Moral Law pg 39

Retribution in punishment is an expression of the communitys disapproval
of crime, and if this retribution is not given recognition, then the disapproval
may also disappear.
A question that may arise is what justifies the use of a criminal to the good
of others especially through the infliction of pain.
According to Sydney Smith (Modern Approach to Criminal Law, pg. 40)
When a man has been proved to have committed a crime it is expedient that
society should make use of that man for the diminution of crime. He
belongs to them for that purpose.
Sir Rupert Cross considered Sydneys answer as being wrong and states that;
The right is that the criminal is not being used merely as a means. He is
being given his just deserts although, in the view taken in this book, there is
no reason why she should receive them at the hands of an earthly power if
crime is not reduced thereby.
The difficulty with this approach is that it is not clear how these assumptions
by penologists on the moral deterrence can be proved to be either right or
wrong. Secondly as already indicated elsewhere it is difficult to measure
how society or the community at large accesses the information required to
enable this educative approach to crime. It is one thing to assume that and
declare that ignorance of the law is no defense, and another to assume that
people in actual fact do know the law and are guided especially in their
criminal activities by such knowledge.

This theory is connected to the deterrence theory. It is founded on the
assumption that the isolation or incapacitation of an offender renders him
incapable of committing crime and rids society of evil. Incarceration or
imprisonment of offenders isolates them from the rest of society and from

the circumstances that led him to crime. The death penalty also disables by
permanently incapacitating the offender. Its main avenue for operation is the
prison and related institutions.
The application is best illustrated in the case of Ndurugo s/o Karuga vs Republic
1950 EACA 50 where the accused was charged with the offence of stealing
one cow. He was sentenced to 10 years imprisonment with hard labor. He
appealed against both conviction and sentence. The conviction was upheld
but sentence was reduced to 5 years. In the opinion of the appeal judges, the
accused if let loose would commit more serious offences as he had 21
previous convictions. The sentence was thus intended to disable or
incapacitate him to ensure security to the communitys property.
The theory has several weaknesses;
a) It merely postpones crime
b) It is based on the prison system with all its weaknesses
c) It presupposes that no crime occurs in prison
d) It encourages longer and unnecessary punishment

There are two aspects to the reformative approach;
a) that reform can come through the punishment itself, the pain of
punishment is therefore expected to have reformative merits on its
own. Sir Rupert Cross remarks that this view is unfashionable and
that nothing can be said about it beyond observing that solitary
confinement is an example from former times, the theory being that
suffering the loss of liberty in solitude would induce remorse,
repentance and reform.
b) The idea of reform as concomitant to punishment. This is the
prevailing theory for sentences such as probation where reform is at
the forefront to the extent that probation in many quarters is not
viewed as punishment at all, but merely as a measure of rehabilitation.

Rehabilitation and reformation are one the major objectives of punishment

and very fashionable amongst penal reformers. It finds basis on the notion
that offenders are social misfits or persons who are socially maladjusted.
Punishment is therefore seem as a means of re-socializing such persons with
the aim of making them useful members of society. The problem with
reformation is that it is a long and expensive process which is not guaranteed

to produce the desired effect or result. Arguments in favour of reformation
a) reforming the criminal provides the state with opportunity
to control crime in future;
b) the reformation process is also deterrent and thus an
effective condemnation of crime
c) it creates resources for the state for training the offender
prison etc
d) it enables the criminal to stay within society probation ,
parole, discharge etc provide s the best opportunity for re-
socialization of the offender

Weaknesses evident in the theory are:

a) Reformation, in most cases, is supposed to occur in prison or jail. The
prison environment is not conducive to reformation as it mixes the
theories or objectives of retribution and deterrence with reformation.
The prison atmosphere generally fosters hatred and bitterness yet the
same is expected to be a correctional institution.
b) To achieve the objective of reformation prisoners are put to all kinds
of programs carpentry, tailoring, hairdressing, gardening, pig
keeping etc. These programs however, do not help reform the
offender as there does not necessarily exist a causal connection
between lack of skills and criminality. It is only a small class of
offenders who lack skills and it does not necessarily follow that they
engage in crime due to lack of skills.
c) Reformation is an expensive process. It demands heavy
infrastructure. In Kenya reformation is directed towards probation,
parole, conditional and unconditional discharge, bonds to keep the
peace, community service orders. The success of these programs
demands financial as well as human resources and facilities for

Opinion varies as to the usefulness and appropriateness of using prisons as a

mechanism for reformation. The Advisory Council on the Penal System
(UK, 1974) stated as follows;
Prolonged and repeated imprisonment is destructive of family relationships
and, by encouraging the prisoners identification with the attitudes of the
prison community, increases his alienation from normal society. In addition,
long-term institutionalization is all too likely to destroy a prisoners capacity

for individual responsibility and to increase the problems he must face when
he returns to society (Length of Prison Sentences, para. 10).
It is therefore rare to find a situation where courts would impose a term of
imprisonment primarily for reformative purposes. It is generally believed
that the best method for securing reform is through non custodial sentences.
The dilemma that judicial officers face is usually that of conflicts between
the issue of general deterrence and reform and between reform and
retribution and reform. This is because whereas, reform or rehabilitation
focuses primarily on the offender i.e. it is mostly for the good of the
offender, general deterrence and retribution focus on the offence, which is
viewed as a violation against the society as a whole and which therefore
requires punitive action. So it may be argued that in many cases, the maxim,
punish the offender rather than the offence is only sound up to a point.
And that there are many cases where the rights of the offender or the
protection of the public require that the sentence should be concentrated on
the offender.
In some instances, for example the courts may allow a longer prison
sentence where there are facilities for the treatment of the offender, and it
has been established that the treatment or therapy requires a minimum time
frame which would then become a threshold for the minimum length of
sentence. But even this notion is not that well settled.
Two English cases demonstrate the difficulties;

Ford (1969) 3 All E.R. 189

Ford had been sentenced to 27 months imprisonment for housebreaking and
larceny, although his co-accused had only been given 12 months. The
difference was largely due to the fact that Ford was an alcoholic and it was
felt that the additional time in prison was necessary for the completion of his
cure. His sentence was reduced to 12 months by the Court of Appeal.
In relation to offences of dishonesty, sentences of imprisonment, except
where there is an element of protection of the public, are normally intended
to be the correct sentence for the particular crime and not to include a
curative element. This Court wishes to make it clear that what it is now
saying has nothing to do with special cases such those of possessing
dangerous drugs or cases where protection of the public is involved.

Moylan (1970) QB 142, 3 All ER 783

Moylan was sentenced to 18 months suspended sentence for larceny. He
was subsequently convicted of causing malicious damage and being drunk
and disorderly and was given 3 months immediate imprisonment. The judge

also brought the suspended sentence fully into operation, partly in hope of
curing Moylans alcoholism. The Court of Appeal held that this was wrong
and activated the suspended sentence for 6 months only.
In our judgment, in cases of dishonesty where there is, as it were, a
background of alcoholism in respect of the accused, the Court must first
determine what are the limits of a proper sentence in respect the the offences
charged. Within these limits it may be perfectly proper to increase the
sentence in order to enable a cure to be undertaken whilst the accused is in
prison. But on the authority of Ford, it is clear that it is not correct to
increase above that within the appropriate range of the offence itself merely
in order to provide an opportunity of cure.
It is interesting to note that whereas, prisons are increasingly wishing
themselves to be viewed as reformative and rehabilitative institutions, there
judicial thought and practice is clearly not taking the same track and
especially for run-off-the mill type offences.
The challenges are even more evident in cases where the offences are
intrinsically serious but are committed by relatively youthful offenders with
previously relatively good conduct. Such offenders would normally lay
claim to reformative and rehabilitative rather than punitive measures.

Newbury and Jones (1976) 62 Cr. App. Rep 291

A sentence of 3 years detention was thought appropriate for a youth of 15
who pushed part of a stone off the parapet of a bridge, causing the death of a
guard traveling in a train which passed beneath.

Elvin (1976) Crim. L.R 204

A sentence of 4 years imprisonment upon a youth of 17 years with no
previous convictions who had set fire to school buildings was upheld, as a
general deterrent to discourage others from committing what was a
particularly rife type of crime.

Smith and Wolard (1978) 67 Cr. App. Rep. 211

The Court here even said that general deterrence should be placed before
reform when sentencing offenders for burglary of houses.
What can be seen from the discussions is that theories exist about sentencing
and what principles are to be adopted. However, the reality of these theories
find expression in the real cases that go before the courts and especially
where those courts find it necessary to explain or expound on what the
sentences are intended to achieve.

A case in point where the English Court of Appeal discussed these issues
extensively is

Sargeant (1974) Cr. App. Rep. 74

The appellant was employed as a doorman at a discotheque. He observed a
customer making a nuisance of himself, went over to the customer and
butted him. From this action general affray resulted, although the appellant
who had received a painful blow in return took no further part. He was
sentenced to 2 years imprisonment.

Lawton LJ
What ought the proper penalty to be? We have thought it necessary not only
to analyze the facts, but to apply to those facts the classical principles of
sentencing. Those classical principles are summed up in four words:
retribution, deterrence, prevention and rehabilitation. Any judge who comes
to sentence ought always to have those four classical principles in mind and
to apply them to the facts of the case to see which of them has the greatest
importance in the case which he is dealing.
I will start with retribution. The Old Testament concept of an eye for an eye
and a tooth for a tooth no longer plays any part in our criminal law. There
is , however, another aspect of retribution which is frequently overlooked: it
is that society, through the courts, must show its abhorrence of particular
types of crime, and the only way in which the courts can show this is by the
sentences they pass. The courts do not have to reflect public opinion. On
the other hand courts must not disregard it. Perhaps the main duty of the
court is to lead public opinion. Anyone who surveys the crime scene at the
present time must be alive to the appalling problem of violence. Society, we
are satisfied, expects the courts to deal with violence. The weapons which
the courts have at their disposal for do so are few. We are satisfied that in
most cases fines are not sufficient punishment for senseless violence. The
time has come, in the opinion of this Court, when those who indulge in the
kind of violence with which we are concerned in this case must expect
custodial sentences.
But we are also satisfied that, although society expects the courts to impose
punishment for violence which really hurts, it does not expect the courts to
go on hurting for a long time, which is what this sentence is likely to do. We
agree with the trial judge that the kind of violence which occurred in this
case called for a custodial sentence. This young man has had a custodial
sentence. Despite his good character, despite the excellent background from
which he comes, very deservedly he has had the humiliation of hearing

prison gates closing behind him. We take the view that for men of good
character the very fact that prison gates have closed is the main punishment.
It does not necessarily follow that they should remain closed for a long time.
I now turn to the element of deterrence, because it seems to us the trial judge
probably passed this sentence as a deterrent one. There are two aspects of
deterrence: deterrence of the offender and deterrence of likely offenders.
Experience has shown over the years that deterrence of the offender is not a
very useful approach, because those who have their wits about them usually
find the closing of prison gates an experience which they do not want again.
If they do not leran that lesson, there is likely to be a high degree of
recidivism anyway. So far as deterrence of others is concerned, it is the
experience of courts that deterrent sentences are of little value in respect of
offences which are committed on the spur of the moment, either in hot blood
or in drink or both. Deterrent sentences may very well be of considerable
value where crime is premeditated. Burglars, rovers and users of firearms
and weapons may very well be put off by deterrent sentences. We think it
unlikely that deterrence would be of any value in this case.
We come now to the element of prevention. Unfortunately it is one of the
facts of life that there are some offenders for whom neither deterrence nor
rehabilitation works. They will go on committing crimes as long as they are
able to do so. In such cases the only protection which the public has is that
such persons should be locked up for a long period. This case does not call
for a preventive sentence.
Finally, there is the principle of rehabilitation. Some 20 to 25 years ago
there was a view abroad, held by many people in executive authority, that
short sentences were of little value, because there was not enough time to
give in prison the benefit of training. That view is no longer held as firmly
as it was. This young man does not want prison training. It is not going to
do him any good. It is his memory of the clanging of prison gates which is
likely to keep him from crime in the future.
A number of considerations from what we have discussed in the various
principles or justifications for punishment arise from the passage;
1) In giving regard to public opinion when considering
sentence, Lord Justice Lawton draws attention to the
denunciatory aspect of punishment and treats as
retribution, in similar fashion to Sir James Stephen
(Liberty, Equality and Fraternity (London, 1874), pg
162-2, writing that common crimes are punished; for
the sake of gratifying the feeling of hatred, - call it
revenge, resentment, or call it what you will which

the contemplation of such conduct excites in healthily
constituted minds.
2) Although there is a clear link between retribution and
denunciation, this justification seems justified to keep
an approximate correspondence between the degree of
popular abhorrence for certain offences and the level
of the sentence is important in order to reinforce
public attitudes towards those offences.
3) He places little faith in individual deterrence as a
reason for making a particular sentence more severe
than it might be on retributive grounds; he argues that
general deterrence may be more justifiable in certain
cases. His arguments seem to be more concerned with
practical utility rather than theoretical considerations.
So that it may be more practical to aim at deterring
premeditated/planned crimes than those that are
impulsive ones. One may argue that for purposes of
prevention of crime it might be more effective to have
a system that imposes high penalties for all offending,
planned or impulsive, than to have one that reserves
higher penalties only for the planned ones. The
question would then be whether the extra amount of
crime reduction gained by treating the two types of
offences in a similar is justified for the imposition of
extra suffering on those committing impulsive crimes,
the utilitarian would not be persuaded, nor would
retributivist who regard such impulsive crimes as less
wicked than premeditated offences
The sentence was considered too long and reduced to 8 months
imprisonment. Clearly the court must have considered this to be appropriate
for one who had not been to prison before and therefore individually
deterrent as well as appropriately retributive in view of the impulsive nature
of the violence.

The Kenyan Penal Code provides under Section 24 for the following forms
of punishment.
a) Death
b) Imprisonment

c) Detention under the Detention Camps Act
d) Corporal Punishment
e) Fine
f) Forfeiture
g) Payment of compensation
h) Security to keep the peace and to be of good behaviour
i) Any other punishment provided by this Code or any other Act

The prevalence of the death penalty has varied a great deal in different
societies. In the medieval period the most common techniques for the
carrying out of the death penalty was by burning, boiling in oil, breaking at
the wheel, the iron coffin, drowning and impaling. In Switzerland impaling
and immuring were practiced until about 1400 and death by drowning until
about 1600. The last case of burning at the stakes in Berlin was in 1786. In
ancient Rome the death penalty was inflicted on slaves and other non-
citizens for various offences.
In England in the early 1700s the death penalty was frequently inflicted for
religious offences, but most of the later inflictions were for offences against
property and in some instances for very trivial offences.
It is reported for example that in 1814, three boys aged, eight, nine and
eleven were sentenced to death for stealing a pair of shoes. Other offences
for which the death penalty was applied in addition to theft, were, poaching,
pick-pocketing etc. During the early part of these periods, the corpse was
gibbeted, that is remained hanging in chains, and was sometimes soaked in
tar so that it would remain for a long time as a warning to evil doers.
Some attempts were made by reformists to at least do away with the more
gruesome methods of carrying out of capital punishment for the offence of
treason; In 1814, one of these reformers Romilly tried in vain to substitute
simple hanging as society reaction to treason in place of the penalty of
hanging, cutting down alive, disemboweling, cutting off the head and
quartering the body.
During the course of the last century there has been a distinct movement
away from the death penalty, a number of countries have abolished entirely
whereas in others the offences for which the death penalty is mandatory has
been limited mostly to murder.

The other trend has been to have a permissive as opposed to mandatory
death penalties. This where courts and juries have been given powers to
decide whether one found guilty of a capital offence must be executed.
In countries like the US where some states have retained capital punishment,
the manner of execution has also been modified to make less prolonged and
less brutal i.e. the introduction of the electric chair, lethal injection as more
civilized and swifter ways of execution.

In Africa, the application of the death penalty also varied from place to
a) Pre-colonial Kikuyu customs provided for burning of murderers and
those who stole habitually
b) Banyankore death penalty was reserved for premeditated homicide
and pre-marital pregnancy
c) Basoga stealing ripe bananas would result in unripe bananas being
inserted into the offenders rectum until some internal organ ruptured
and he would bleed to death
d) Kingdom of Benin burning alive
e) Buganda adulteresses could be put to death.

The death penalty is prescribed for the following offences:

a) Treason C/S 40(3) of the Penal Code
b) Murder C/S 204 of the Penal Code
c) Robbery with violence C/S 296(2) as well as Attempted robbery with
violence C/S 297.

Under Section 211 of the Penal Code,
Where a woman convicted of an offence punishable with death is found in
accordance with the provisions of Section 212 of the PC to be pregnant, the
sentence to be passed on her shall be of imprisonment for life instead of
death sentence.
Section 212,
The woman herself can allege that she is pregnant or the court which
convicts may order that the question of her pregnancy be determined, it shall
be determined by the trial judge.
Evidence may be laid by the woman herself or the republic, and such
evidence must be proved affirmatively to the satisfaction of the judge that
the woman is indeed pregnant. It the woman is dissatisfied with the judges
finding, and then she can appeal to the court of appeal.

Section 25 (2)
Sentence of death shall not be pronounced on or recorded against any
person convicted of an offence if it appears to the court that at the time when
the offence was committed he was under the age of eighteen years, but in
lieu thereof the court shall sentence such person to be detained during the
Presidents pleasure, and if so sentenced he shall be liable to be detained in
such place and under such conditions as the President may direct, and whilst
so detained shall be deemed to be in legal custody.
When a person has been sentenced to be detained during the Presidents
pleasure under subsection (2), the presiding judge shall forward to the
President a copy of the notes of evidence taken on trial, with a report in
writing signed by him containing any recommendations or observations on
the case he may think fit to make.
Under LN 579/1963 this power is delegated to the Minister and to the
Permanent Secretary of the Ministry for the time being responsible for
Section 166 of the Criminal Procedure Code
Where it is shown that at the time of committing a capital offence the
offender was insane then he shall be detained at the Presidents pleasure.
Manner of Execution
Under Section 69 of the Prisons Act it is provided as follows;
When any person is sentenced to death, he shall be hanged by the neck until
he is dead and the sentence shall be carried out in such manner as the
Commissioner shall direct.
The death sentence wherever it is provided for in Kenya is a mandatory
sentence. Once the court finds one guilty of a capital offence, there is no
option of any other sentence except for the exceptions discussed above.
There is no discretion granted to the court.
The courts have found particular difficulties with the application of the law
with regard to robbery with violence.
Definition of robbery
Section 295 of the Penal Code
Any person who steals anything, and, at or immediately before or
immediately after the time of stealing it, uses or threatens to use actual
violence to any person or property in order to obtain or retain the thing
stolen or to prevent or overcome resistance to its being stolen or retained, is
guilty of a felony termed robbery.
Section 296 (1)

Any person who commits the felony of robbery is liable to imprisonment for
fourteen years together with corporal punishment not exceeding twenty-
eight strokes.
If the offender is armed with any dangerous or offensive weapon or
instrument, or is in company with one or more other person or persons, or if,
at or immediately before or immediately after the time of the robbery, he
wounds, beats, strikes or uses any other personal violence to any person, he
shall be sentenced to death.
Subordinate courts have tended to consider the degree of violence and
gravity of injuries against the victim to determine whether or not one is
guilty under Section 296(2). For example, where the offender is in the
company of others, they are armed, but do not use the arms to injure the
victims. The Court of Appeal has on the other hand been very insistent that
the offence is sufficiently proved once those ingredients exist and it is
immaterial that no actual harm was caused.
Justification for the Death Penalty
1. It is argued that it is deterrent. It disables the accused completely in
that he would never be in a position to commit a similar offence or
any other offence for that matter. It deters others, some proponents of
this view suggest that it would be even more effective if carried out in
public. (This is the mode preferred by successful coup plotters in
Africa of the 60s, 70s and 80s).
2. In the majority of cases, those who are sentenced to death are those
who are beyond the hope of rehabilitation such that imprisonment
would be a waste of taxpayers money. It is argued that execution is
less costly.
3. It is more humane to hang a person than to imprison them for life
4. Without the death penalty, society would return to lynching, even for
petty offenders
5. The death penalty is sanctioned by the Lord. Genesis 9 v 6 Whoever
sheds human blood, by man shall his blood be shed, for in the image
of God made He man. Exodus 21 v 13 The punishment shall be life
for life.

Case against
1. Death is a not a punishment at for the victim does not live to learn to
avoid wrong doing.

2. Studies have shown that the death penalty does not have a unique
capacity to deter. Thus, its deterrent value is overrated and cannot
justify its retention.
3. It is contrary to the highest ideals of civilized communities, it is cruel,
inhuman, unkind, degrading
4. For Christians, it contravenes the commandment Thou shall not kill
5. Society cannot get rid of murderers by being a murderer itself
6. It is irrevocable there is a real risk of executing innocent persons
7. Hanging is hangover from the barbaric past
8. It is exploited by oppressive regimes to repress and stamp out
9. It is inflicted mostly on the weak in society the most vulnerable
members of society i.e. the poor who are least able to access legal

This is the most common form of punishment after fines. The Penal Code
provides for maximum sentences, but the regime of minimum sentences was
done away with.
The courts as a result of the amendments to those sections that previously
carried minimum sentences now have total discretion with regard to penal
offences to award any duration from 1 day to the prescribed maximum.
However, a court whose jurisdiction is limited can only sentence up to a
maximum of their jurisdictional limit, i.e. a Resident Magistrates maximum
sentencing jurisdiction is 7 years, so if they try an offence such as simple
robbery whose maximum sentence is 14 years, such a resident magistrate
can only sentence up to 7 years.
It is a generally accepted principle of sentencing that in awarding sentences
regard should be had that the maximum sentences are reserved for the worst
cases, i.e. those cases that are exceptionally heinous.
This principle was recognized in the UK as early as 1932, by the Dove
Wilson Report on Persistent Offenders
In order that there may be a proper grading of sentences to fit the many
degrees of gravity presented by the various cases which fall within the same
legal category, it is necessary that the maximum sentence authorized by law
should be reserved for the rare offences which are exceptionally heinous,
that sentences approaching the legal maximum should be reserved for
offences falling within the next degree of gravity, and so on, with the result
that ordinary offences (such as form the great majority of cases coming
before the Courts) the heaviest sentence which the Court feels justified in

imposing is usually far below the maximum sentence authorized by law for
the category of offence in question.

Section 46(1) of the Prisons Act provides that convicted criminal prisoners
sentenced to imprisonment, whether by one sentence or consecutive
sentences for a period not exceeding one month, may be industry and good
conduct earn a remission of one-third of the sentence or sentences.
Remission is therefore discretionary based on good conduct and industry and
is not available;
1. a prisoner serving a sentence of less than one month
2. a prisoner sentenced to one month imprisonment
3. a prisoner detained during the Presidents pleasure
Remission can be denied on the following grounds;
1. The interests of the prisoners own reformation and rehabilitation
2. that the Minister in charge of internal security considers that in the
interests of public security or public order not to release the prisoner
Remission can be lost as a result of its forfeiture for an offence against
prison discipline.
Remission cannot be earned for the following periods;
1. any period spent in hospital through the prisoners own fault, or while
2. any period during which the prisoner is undergoing solitary
confinement as a punishment
Not withstanding all these stipulation, the Minister in charge of Prisons, on
the recommendation of the Commissioner, may grant a further remission on
the grounds of exceptional merit, permanent ill health or other special
The Commissioner also has powers to restore forfeited remission in whole or
in part.
It should be noted that remission is intended to be an incentive for the
offender to reform within prison, this evidenced by the provision of Section
46 (2) of the Act to the effect that; For purposes of giving effect to the
provisions of subsection (1) of this section, each prisoner on admission shall
be credited with the full amount of remission to which he would be entitled
at the end of his sentence if he lost no remission of sentence.
Under Section 49 of the Prisons Act provision is made that Within three
months of the date upon which a prisoner serving sentence of or not

exceeding four years is due for release, the Commissioner may allow such
prisoner to be absent from prison on parole for such length of time and upon
such conditions as the Commissioner may specify.
The Commissioner has powers to recall a prisoner who is on parole at any
Form 3
Parole Licence and Conditions
Specifies, that the licence will indicate the place to which the parolee will
proceed, and that they shall not move from that address without consent of
the Commissioner,
Further there is a condition that they shall abstain from any violation of the
law and will not associate with persons of bad character,
They are required to carry the licence and to produce it if required by a
prison or police officer
It further specifies the Prison to which the parolee may report in case they
require advise or assistance.
The conditions have to be explained to the parolee in the presence of a
prison officer who has to certify so, the parolee is also required to sign or
mark the licence signifying that it has been explained and they have
There is provision for affixing the parolees photograph and fingerprints.
It is noteworthy that not much has been done with a view to exploiting these
provisions especially in line with the more developed jurisdictions where
parole is used extensively to enable long term prisoners the opportunity to
shorten the lengths of their sentences. This is an area that calls for
considerable reform measures.


Under Section 47, of the Prisons Act, the Commissioner has the following

(a) shall, in the case of a prisoner who, having been sentenced to

imprisonment on not less than two previous occasions, is
serving a sentence of imprisonment for a term not exceeding
three years; and
(b) may in the case of any other prisoner where he considers it
necessary or desirable in the interests of the rehabilitation of
that prisoner to so do.

Make an order, to be known as a compulsory supervision order, providing
for the compulsory supervision of the prisoner for any period not exceeding
one year.

The prescribed form is form 2 under the Act. It contains the details of the
offender under supervision, with specifics of who the offender is to report to
in any case.

Contravention of the supervision orders through the conviction for other

offences, or failure to comply with the conditions of the order; results in the
revocation of the order, and the Commissioner is empowered to issue a
certificate to that effect. The said certificate is conclusive evidence of its

If the offender is undergoing punishment for a subsequent offence, then he

shall automatically serve a period of 3 months or the period for which he
earned remission whichever is the greater.

Where such ex-prisoner is at large, the Commissioner shall present the

revocation certificate to a magistrate who shall then issue a warrant of arrest.
Upon arrest, the magistrate shall upon proper inquiry and on being satisfied
that the person has been convicted of a subsequent offence or failed to
comply with the supervision orders shall sentence for the term provided for

The Commissioner has powers to discharge a prisoner undergoing

imprisonment for violation of the supervision orders, and can make further
supervisory orders with regard to the same prisoner.

The Commissioner also has powers to vary the supervisory order whenever
he considers it necessary to free a person under the order should be freed
from liability therein.


Under Section 27 of the Constitution powers are given to the president to

pardon. This is what is usually referred to as the prerogative of mercy and it
may be exercised in several forms;

a. Pardon to a convicted person either
conditionally or unconditionally
b. Grant a respite from the execution of a
sentence or punishment either indefinitely or
for a specific period
c. Substitute a less severe form of punishment.

Section 28 of the Constitution provides for an

Advisory Committee to the president, but there
recommendations are not binding on the

This is the most common type of punishment
and it is usually meted out for minor offences.
In some cases the Penal Code or the Statutes
make specific provision for fines, together with
the either the minimum or the maximum
amounts, and in some cases they will specify
whether it is to be additional or in substitution
for imprisonment.


Under Section 35 of the Penal Code provision

is made that where the court is of the opinion
that having regard to the circumstances,
including the nature of the offence and the
character of the offender, that it is inexpedient
to inflict punishment and further that a
probation order is inappropriate, it may issue a
discharge order. The discharge may be either
conditional or absolute. Where it is conditional,
then the condition should be that the offender
will not commit another offence for a period
not exceeding 12 months. Violation will lead to
the court exercising its discretion on whether or
not to sentence the offender for the original
offence for which the discharge had been


This can be awarded to a person who has

suffered material loss or personal injury in
consequence of the offence by the accused.
The courts are usually reluctant to award
compensation in criminal cases especially in
those cases where serious injury has been
suffered, and proper and sufficient medical
evidence may not have been adduced, and so
the task is usually left to the civil process.

Where there is any property involved in the cause of trial, at the end of the
trial the court can make an order for the release of the property to the rightful


These Orders came into effect with the enactment of the Community Service
Orders Act, No 10 of 1998. It replaced the Extra Mural Penal Employment
which was provided for under Section 68 of the Prisons Act.

Background to the Orders

Whereas, the EMPE had been meant to reduce congestion in prisons and
provide a mechanism for enabling rehabilitation of the offender within the
community; there was a lot of dissatisfaction with its application and
implementation. Under EMPE anyone who was liable for imprisonment for
a term not exceeding 6 months could be placed on EMPE, each locality had
designated EMPE centers which were invariably local administrative
officers e.g. DO, and Chiefs officers as well as the courts themselves. The
offenders were supervised by Prisons officers, and they were meant to carry
out work of a public nature. It was served between 8 am 12 noon.
Complaints against the systems included;
It did not lead to decongestion of Prisons, since the cut off of 6
months left out a lot of petty offenders

It was misused by the administrators to service their own private
Some of the work carried out was mundane and had no impact for
public expenditure
The timing of when it could be served ran counter to the idea that one
could serve and still continue working, i.e. there was no flexibility, so
offenders would still loose their jobs as a result of carrying out the
There was disquiet with the idea that whereas, this was intended to be
a community based rehabilitation programme; supervision was carried
out by uniformed personnel.

In response to the increasing numbers of prisoners and the deterioration

of prison conditions, matters were made worse when a conference
organized to discuss prison reforms was told by the then High Court
Judge, Justice Emmanuel Okubasu that being sent to a Kenyan Prison
was equivalent to being awarded a death sentence, the Kenya
Government set up a committee to look into EMPE and to make
recommendations on Community Service Orders, in the same year, 1996.
Justice OKubasu, was appointed chairman and the Committee gave its
report including a model statute to the Attorney General in 1997.
It is instructive that at this point and time Community Service Orders
were already recognized as sentences in many commonwealth

Section 3 of the Act provides as follows:

(1) Where any person is convicted of an offence punishable with-

(a) imprisonment for a term not exceeding three years, with or without
the option of a fine; or
(b) imprisonment for a term not exceeding three years but for which the
court determines a term of imprisonment for three years or less, with
or without the option of a fine, to be appropriate.

The court may, subject to this Act, make a community service order
requiring the offender to perform community service

2 (a) Community service shall comprise unpaid public work within a

community, for the benefit of that community, for a period not

exceeding the term of imprisonment for which the court would have
sentenced the offender.

Types of work to be carried out;

construction or maintenance of public roads or roads of access;
afforestation works
environmental conservation and enhancement works;
projects for water conservation, management or distribution and
maintenance work in public schools, hospitals and other public
social service amenities
work of any nature in a foster home or orphanage
rendering specialist or professional services in the community
and for the benefit of the community

The court may require a report from a community service officer

before making an order.

The court shall not make an order unless the offender is present in
court, and there are adequate arrangements for the execution of the
Where a report exists, the court must be satisfied that the offender
is a person suitable to perform community service.

The offender must consent to being placed on CSO.


The Act creates a National Committee whose chairman is to be a

Judge of the High Court appointed by the Chief Justice
Members include
DPP or his nominee
PS, Provincial Administration and Internal Security or his nominee
PS, Public works or his nominee
Commissioner of Police or his nominee
Commissioner of Prisons or his nominee
Director of Probation
Director Children Services
Nominee Council of LSK

Two persons with training and experience in the criminal justice
system, one in teaching of the law, and the other a magistrate of
first class, both to be appointed by the Chief Justice
Five members appointed by the Minister out of a list of 7 nominees
by the National Committee, two of whom shall be representatives
of NGOs involved in social welfare work registered under the
NGO Co-ordination Act,
National Coordinator
The Committee has powers to co-opt not more than 3 persons
whose assistance or advice it requires or considers necessary, in the
discharge of its functions, for a period that they deem fit.


Advise the Minister and the Chief Justice generally on
the proper implementation of Act
Coordinate, direct and supervise the work of the
community service officers
Collect and collate data on the operation of this Act for
the purpose of improving the national policy on
community service orders
Advise the Chief Justice on any need for enhanced
application of the provisions relating to revision under
the CPC so that the courts may make better use of the
CSO in appropriate cases.

Section 11 makes provision for the establishment of district,

divisional and locational community service order
committees, by the Minister in consultation with the
National Committee, by
Order in Gazette.

Once on CSO, the offender is required

To report to the supervising officer specified in the

order for assignment of work
Perform for the period specified in the order such
works at such times and place as he may be
instructed by the supervising officer
Report to the supervising officer any changes in
address that may occur from time to time.


These orders are yet to have the desired effect, prisons still
complain of congestion, meanwhile the national committee
keeps release huge figures of those supposedly under CSO.

These problems could be stemming from the fact that

judicial officers are still treating CSO in the same manner
that they treated EMPE, and there awarded them for very
minor offenders as opposed to using the cut-off point of 3
years imprisonment.
The sentence is meant to be awarded in hourly terms and
yet there are no clear rules and table to assist judicial
officers in determining how to march the envisaged prison
sentence and the corresponding hours.

The provision for district, divisional and locational

committees introduces a bureaucracy that does not exist in
the judicial system, and yet the programme is meant to be
judiciary driven. It would make more sense if the provision
was made for mandatory committees in each magisterial
station whose membership should largely reflect all the
criminal justice players at the local level including the
placement agencies benefiting from CSO to be represented.

Logistics should be put in place to ensure that data is

continuously up dated and that relevant info such as the
kind of offences, the periods which could have been served
in prison and the amount of money that would have been
used by the government in the up keep of each such
offender forms part and parcel of such info. This will
enable a better process for assessing the success and failure
of the programme and a mechanism for proposing reforms.

There is very little public awareness that was created prior

to and during the implementation of the programme and yet
its success depends to a large extent on how receptive the
public is towards it. This is especially so because this kind

of sentence is meant to rehabilitate the offender within a
communal set up.

The advantage of a properly run CSO programme lies in the

fact that the public reaps benefits, they also have the
opportunity to interact with the offender and through the
local supervisory arrangements can make their sentiments

In some jurisdictions the issue of whether or not offenders

on CSO has been discussed with varying degrees of
acceptance. Those for it argue that it is important to
publicly identify the offenders because that carries with it
shame which would result in shame, in itself a deterrent
factor. Those against argue that such public humiliation and
shame goes against the very spirit of rehabilitation and
causes stigmatization.


This is also community based rehabilitation mechanism and

is usually meted out to first offenders that by reason of age,
circumstances of the offence warrant the sentence. The
sentence is meant to run for a minimum of 6 months and
maximum of 3 years.

No order of probation can be made without the report of a

probation officer. A probation report is detailed summary of
the circumstances under which the offence was committed,
the offenders personal circumstances, and the
recommendation by the probation officer. The report is
made through the interview of the offender, his family
members, relevant community members, the victim of
crime and any other persons that the probation officer may
deem necessary. The main objective of the report should be
to give the court a very clear picture of whether or not the
offender is likely to benefit from probation and what social
support systems exist to enable this to happen. The report is
not binding on the court. The success of probation depends

to a large extent on the availability of attendant services
such as counseling and skills development for the offenders.


Sentencing refers to the process of arriving at the

punishment. The sentence must be suited to the offence
committed. A sentence is therefore a judicial order
directing that a specified form of punishment be inflicted on
a convict. There are principles which govern sentencing.
The principles are closely related to the objectives of
punishment. They depend to a large extent on the
philosophy and attitude of the bench, the nature and
particular circumstances of the offence and the character of
the offender.

In the first place the sentences meted out are limited to the
Penal Code at Section 24. Further the court should only
impose sentences that are within its jurisdiction. There are
three key principles of sentencing:
Gravity of the offence
The presence of mitigating factors;
Equality or proportionality in awarding sentences


The gravity of an offence refers to its harmfulness. It

has already been noted that grading of offences
according to gravity is primarily the work of the
legislature and they do so by fixing the maximum
sentences for specific offences. It is possible from
especially with common offences to detect from judicial
decisions 5 things that are considered to affect the
gravity of offences.

Social danger
Battams (1979) 1 Cr App R 16

Cantley J
It is often said, and rightly said, that there would not be so
many thieves if there were no receivers. Professional
thieves do not steal good merely for there own
consumption; they steal them for disposal and it is essential
to the success of criminality that there should be receivers,
big receivers and small receivers, like this appellant who
will dispose of their goods unobtrusively in various

In terms of deterrence therefore, it would appear from the

above statement that it is more important to deter
professional receivers than to deter professional thieves, in
order to prevent theft.

This argument favours the general deterrence theory of


This is in respect to the victims of the crime, so for example
burglary is deemed to be more serious than common theft.
Historically, burglary in the UK could only be committed in
respect of dwelling houses at night. It was considered that
such acts would therefore.

The Eighth Report of the Criminal Law Revision

Committee at para 74

With better street lighting in most places night is no longer

so much more favourable than day to criminals, nor so
much more frightening to householders than it was in the
days when the distinction between burglary proper and
housebreaking was drawn. Moreover in some places
housebreakers choose a time in the morning when the
housewife has to out and leave the house empty; and it is
sometimes quite as upsetting and even frightening for a
woman to find on her return that the house has been
ransacked during her absence as it is to have her house
burgled at night.

The same can be said of robbery or theft where weapons are
carried, displayed or used against the victim, the sense of
alarm is definitely higher, than an ordinary theft.

Social disapproval
The maximum sentence provided by statute is sometimes a
reflection of the social disapproval that goes with a
particular offence. Lately in Kenya we have the example of
defilement, which previously carried a maximum of 14
years, but after public outcry and pressure, it was increased
to life imprisonment. In fact most sexual offences are
rooted in social disapproval, as they usually go against
social norms.

This has to do with the willful factor including malice with
regard to the offender; this implies the wicked intent of the
offender, who is then viewed as more serious threat to the
society, than an offender who unintentionally or in the heat
of the moment commits a crime.

In general, this would mean that taking offences generally
the courts should with the use of statutory provisions be
guided, by awarding sentences comparatively with what the
highest awards are, i.e. offences that carry life
imprisonment should be a factor, so that other offences that
do not carry this should be awarded sentences that are
below those normally awarded to the life carrying offences.


Matters requiring