‘Boko Haram’ 10 years for murder: So what does the law say? We asked a criminal law expert
In the light of the 10 years jail sentence that was given to two of the infamous Boko Haram gang members for murder, and the outrage of the community that was expressed via social media on the sentence, LETABA HERALD asked a local Attorney, Anita Cambell, a Criminal Law specialist, to shed more light on the sentencing.
Each case shall be considered on its own merits.
Read: TZANEEN: Boko Haram gang members sentenced to ten years for murder – community outraged
Appropriate sentences: A presiding officer, be it a Judge or a Magistrate (hereafter ‘he Court’) is duty bound to impose a fair, balanced and appropriate sentence.
The Court is empowered with a discretion which must self-evidently, be exercised judicially. The Court will be guided by statutes (Act) and presidents (other cases) in order to exercise his or her discretion.
The Criminal Law Amendment Act, Act 105 of 1997 (hereafter ‘the Act’), commonly known as the’ minimum sentence act’, prescribes minimum sentences for certain categories of serious offences.
This article shall only deal with the offence of murder but it should be noted that the Act prescribes various sentences applicable to various categories of offences.
Section 51(1) of the Act prescribes, inter alia, that if a person is convicted of murder where it was:- 1. Planned or premeditated;
2. The victim was a law enforcement officer or a person who has or was likely to give material evidence in a criminal matter;
3. The death of the person was caused by the convicted person while committing one of the following offences: a. Rape b. Robbery with aggravating circumstances
4. Committed by a person, group of persons or syndicate acting with a common purpose or conspiracy;
5. The victim was killed in order to unlawfully remove any body parts of the person or if the person died as a result of such removal
or
6. If the death was as a result of any offence as contained in Section 1(a) –(e) of the Witchcraft Suppression Act.
That person shall be sentenced to life imprisonment, meaning that the sentenced person will only be considered for parole after serving at least 25 years imprisonment.
Section 51(2) of the Act provides that any person convicted for murder, other than the ones listed above a first offender shall be sentenced to 15 years imprisonment, a second offender to 20 years imprisonment and a third offender for a period not less than 25 years.
The Court may only deviate and impose a lesser sentence if the Court is satisfied that substantial and compelling circumstances exist which justify the deviation. These substantial and compelling circumstances shall be recoded on the Court record and the Court shall then impose the appropriate sentence.
Substantial and compelling circumstances are not defined in the Act and in this regard the Court will consider the accused’s personal circumstances, the offence and the interest of society and make a finding if substantial and compelling circumstances exist.
Each case shall be considered on its own merits.
The Supreme Court of Appeal has warned that Courts should not lightly deviate from the prescribed minimum sentence for flimsy reasons.
*Please note that Cambell was not privied to the judgement in the ‘Boko Haram’ matter and is thus unable to intellectually comment on the founded substantial and compelling circumstances that the Judge relied on in deviating from the prescribed minimum sentence.
