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{
    "id": 950282,
    "url": "https://info.mzalendo.com/api/v0.1/hansard/entries/950282/?format=api",
    "text_counter": 173,
    "type": "speech",
    "speaker_name": "Tharaka, DP",
    "speaker_title": "Hon. George Gitonga",
    "speaker": {
        "id": 13491,
        "legal_name": "George Gitonga Murugara",
        "slug": "george-gitonga-murugara"
    },
    "content": "to exercise discretion depending on circumstances and gravity of the offence, so that the sentence that is meted out is commensurate with the offence that has been committed. We seem to be taking away that discretion and that is why I will oppose this law unless we amend it at the Committee of the whole House stage to come up with what we will consider to be stiffer penalties, but anchored in our laws. Hon. Ndindi Nyoro is right to argue passionately that we must combat corruption at all costs. I agree with that 100 per cent. Corruption is a vice that has permeated into our country. It affects both levels of government, namely, the county and the national governments, and it needs to be fought at all costs. The President is right to embark on a war of fighting corruption, so that we do not have any avenue where any corruption culprit would survive. Having said so, we have got to re-examine, and I agree with Hon. Wamalwa, whether the problem is actually in sentencing or the problem is in the way we go about fighting corruption right from the stages of investigations to an efficient prosecution. We have known it this way: Corruption may actually be investigated properly but not prosecuted well and eventually the judge may be compromised, which means we would not succeed. In countries that have been cited, including China and other oriental countries, we have been informed that in fact corruption carries capital punishment. That is deterrence. Capital punishment is a one-stop punishment that has no avenue out. You cannot wriggle out of it. It is just there. And once it is pronounced, it is pronounced unless set aside by an appellate court. To fight corruption, we need deterrence measures and deterrence sentences like we are proposing. We need prohibitive sentences that are going to prohibit one from ever thinking of committing an offence. The problem is the magnitude. I go to hospital with a sick patient and I am told time is out I cannot come in. I find a gatekeeper whom I am able to compromise with Kshs100. I am allowed to go in and that life is saved. Unfortunately, the gatekeeper is arrested on matters corruption, taken before court and sentenced to not less than 10 years imprisonment. Is that sentence commensurate to the offence? There existed such a sentence in one statute known as the Narcotic Drugs and Psychotropic Substances Act. We were combating drugs vehemently towards the late 1990s and beginning of 2000. We had a sentence whereby if you were convicted of an offence under that particular Act, you would not get less than 10 years in prison. A lady in Kawangware was arrested with rolls of bhang, taken to court and she pleaded guilty because she had the drug. The magistrate gave her 10 years in prison. There was hue and cry in the country as to whether the magistrate had exercised his mind properly. His answer to the hue and cry was this: “I am sorry, my hands are tied. I cannot give you anything less than 10 years.” The Law Society of Kenya (LSK) took the matter to the High Court. Judges of the High Court sat over it, revised the sentence with a declaration that the penalty was illegal and unconstitutional because it had taken away the discretion of the magistrate. For that reason, I opposed the bit that said it has to be a minimum of Kshs1 million and a minimum of whatever number of years you have to go to prison. Let us amend this and have stiffer penalties. But we must always leave room for the judge, magistrate or trial court that is hearing the matter to exercise that discretion. We must also leave room for mitigation. I have always wondered in the capital offences crimes in Kenya, which include murder, treason and robbery with violence, is there room for mitigation? Once you are convicted of murder, do you ever mitigate so that you get a lesser sentence? The mandatory sentence is death and you cannot mitigate on that. You cannot get anything lesser. You cannot get it commuted unless through parole or the presidential clemency avenue. I do not think we want to go that way. I think the right way for us to go is to make the penalty stiffer. We may say the fine will not be more than The electronic version of the Official Hansard Report is for information purposes only. Acertified version of this Report can be obtained from the Hansard Editor."
}