Questioning the place of retributive justice in mandatory minimums using rape in Kenya as a case study
Gathoni, Marjory Njeri
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Retributive justice has been used as the justification for the punishment of crimes for a long time. However, it has .had little effect in ensuring that offenders are discouraged from committing crimes and therefore, there has been an emphasis on the need to move away from retribution as the justification for punishment. This thesis seeks to find a link between two theories of punishment, retribution and utilitarianism as in essence they have different aims. In particular, the different aims are, pay back and deterrence. Mandatory minimums are a realization of both the retributive and the utilitarian theories of punishment. Mandatory minimums set out a default and determinate punishment for anyone who is found guilty of committing the crime they are attached to. In this way they are retributive. The deterrent effect comes about in the sense that, law makers assume if a crime has a pre-determined and default punishment attached to them, offenders and potential offenders will be deterred from committing the crime. However, though the retributive effect of mandatory minimums is always realized when punishment is meted out, the deterrent effect has yet to be realized and this is reflected in the rising crime rates. For example, this thesis has looked at the punishment for rape meted out in Section 3 of the sexual offences act of Kenya, which is in the form of a mandatory minimum. The sexual offences act, was enacted, as a response to the ineffectiveness of the already prescribed punishments in the now repealed penal code. It introduced mandatory minimums for sexual offences in a bid to reduce the incidences of sexual assault in Kenya. However, the economic survey by the Kenya national bureau of statistics of 20 17, shows evidence that the incidences of the crime of rape that have been reported, seem to have plateaued and they have not reduced. The question then becomes whether a change in law would be more effective in ensuring that the rates of crime reduce. A change in law might have a positive effect but this dissertation paper concluded that the other means such as the need for public education on sexual offences and the aforementioned act, should be implemented first before a change in law is considered.