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COTTLE,W.T. System Energy Resources, Inc. 2pp. Ack receipt of petition requesting NRC to fix or close all NRC will review petition in accordance w/ 10CFR & issue formal decision within reasonable time. Inadequate consideration iven to potential for inadvertent draining of . S., BELISLE.
Table of contents
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- United States v. Aluminum Co. of America, 148 F.2d 416 (2d Cir. 1945)
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Article 53 1 f of the constitution does not distinguish between persons under eighteen years convicted of offences carrying the death penalty and persons under eighteen years convicted of lesser offences. The above provisions are clear. All law must conform to the Constitutional edifice. It follows that the provisions of the Penal Code [12] pertaining to imprisonment of persons under eighteen years must meet the threshold prescribed by the constitution. The UN Convention on the Rights of the Child provides in Article 37 a that '[n]either capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age.
In addition to Kenya being a signatory to the above instruments Article 2 5 of the Constitution expressly imports the general rules of international law and makes them part of the law of Kenya.
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Prisoners' sentences are typically deemed to be complete when the reviewing body is "satisfied that there has been a significant change in the offender's attitude and behavior. Indefinite imprisonment or indeterminate imprisonment is the imposition of a sentence by imprisonment with no definite period of time set during sentencing.
Its length is instead determined during imprisonment based on the inmate's conduct. The inmate can be returned to society or be kept in prison for life. In theory, an indefinite prison sentence could be very short, or it could be a life sentence if no decision is made after sentencing to lift the term. The main rationale for imposing indefinite as opposed to fixed sentences is to protect the community. An offender can then be kept behind bars until it is determined the offender would not pose any danger to the society.
The court acknowledges that the sentencing of juvenile offenders is much more complex than sentencing adult offenders and that youth has always been considered as a mitigating factor.
United States v. Aluminum Co. of America, 148 F.2d 416 (2d Cir. 1945)
The Constitution is the supreme law of the land and it creates a fundamental framework within which the respective ambits of the legislative, executive and judicial arms of the State are defined. It is not exhaustive in its own terms and, consequently, a generous and purposive interpretation of the Constitution has to be adopted in order to give effect to its underlying values. A Constitution is an organic instrument. Although it is enacted in the form of a statute, it is sui generis.
This Court has on several occasions in the past pronounced upon the proper approach to constitutional construction embodying fundamental rights and protections. What is to be avoided is the imparting of a narrow, artificial, rigid and pedantic interpretation; to be preferred is one which serves the interest of the Constitution and best carries out its objects and promotes its purpose. All relevant provisions are to be considered as a whole and, where rights and freedoms are conferred on persons, derogations there from, as far as the language permits, should be narrowly or strictly construed.
In my view, sentencing of children is a constitutional matter of great concern and import for the criminal justice system, beyond and above the interest of a specific applicant. Courts are required to distinguish between children and adult offenders when sentencing and children must enjoy preferential sentencing treatment.
It must, I think, be conceded that if the release of the prisoner depends entirely on the capricious exercise of the discretion of the executive authorities leaving them free to consider such a possibility at a time which they please or not at all and to decide what they please when they do, the hope which might yet flicker in the mind and the heart of the prisoner is much too faint and unpredictable to retain for the prisoner a sufficient residue of dignity which is left un invaded.
The effect of an indeterminate sentence on a detained persons right to dignity was eloquently expressed by Mahomed CJ, [22] albeit in the context of a life sentence In deciding whether a citizens' constitutional right not to be deprived of his rights except by due process of law, it is the legal system as a whole which must be looked at, not merely one part of it. In Reg. The view which prevailed was that it was not a life sentence but was a wholly discretionary sentence. That means that the Home Secretary must decide from time to time, taking into account the punitive element whether detention is still justified.
Life imprisonment involves an order for custody for life. This, no doubt, is the cause of considerable torment. Both domestic and international human rights law are clear when it comes to the detention of children. The detention of a child must only be a measure of last resort [28] and must only be for the shortest appropriate period of time. This requires the courts to play a crucial role in giving content and meaning to the fundamental rights enshrined in the Bill of Rights. Therefore the courts are the guardians of the Constitution and the values it espouses.
In interpreting the law the courts have to infuse it with values of the Constitution. Courts should never shirk the constitutional responsibility. All that the Constitution requires is that children be treated as children; with care, compassion, empathy and understanding of their vulnerability and inherent frailties. Even when they were in conflict with the law, the hand of the law cannot be permitted to fall hard on them like a sledgehammer lest it destroy them. The Constitution demands that the criminal justice system be child-sensitive.
The Constitution of Kenya, provides for the rights of a child during arrest and detention.
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It is clear that the rights of the child are protected under Article 53 of the constitution and a court must be vigilant in ensuring that those rights are respected. Hence, the existence of a system providing for consideration of the possibility of a child being detained for the shortest time possible is a factor to be taken into account when assessing the constitutionality of the provisions under consideration.
I find that section 25 2 of the Penal Code [32] is inconsistent with the provisions of Article 53 1 f of the constitution which provides that a child has the right not to be detained, except as a measure of last resort, and when held to be held for the shortest appropriate period of time and separate from adults and in conditions that take account of the child's sex and age.
Whether section 25 3 of the Penal Code offends Article 1 of the constitution. I find it appropriate to borrow the words of Lord Diplock in the above cited case when he said at pp. The Privy Council went on to hold that such a provision is contrary to the Constitution and that the sentence passed was an unlawful sentence.
Judicial authority, is the term given to the power given to a judge that allows him to hear a case and to decide in favour of one party. Where sentencing powers properly lie has been the subject of intense debate in other jurisdictions such as the UK. In reversing the lower decision of the Court of Appeal, the House of Lords held that sentencing powers are to lie with the courts and not the Crown.
The question of separation of powers was considered by Lord Bingham of Cornhill in the above case [36] where his Lordship stated as follows An accused has a constitutional right to a fair trial by an independent and impartial tribunal. The imposition of sentence is part of the trial. Therefore, the sentence should be imposed by an independent and impartial tribunal.
The Constitution requires effective separation of powers between the courts and the other branches of the government. Separation of powers is necessary to ensure a balance of power. A more fundamental reason for the separation of the power of judging is the liberty of the citizen. Nor is there liberty if the powers of judging are not separate from legislative power and from executive power.
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If it were joined to legislative power, the power over the life and liberty of the citizen would be arbitrary, for the judge would be legislator. If it were joined to executive power, the judge could have the force of an oppressor. The constitution being the supreme law of the land separates the powers of the legislature, the executive and the judiciary. Judicial power is reserved to the judiciary. The imposition of a punishment in a criminal matter which includes the assessment of its severity is an integral part of the administration of justice and is therefore the exercise of judicial, not executive, power.
The Constitution of Kenya provides that "The Constitution is the supreme law of the Republic and any law which is inconsistent with the constitution is to the extent of the inconsistency void. The courts are accordingly empowered to construe the provisions of the Penal Code [42] to bring them into conformity with the Constitution. Imposition of sentences is a judicial function to be performed by sentencing courts. The function of sentencing courts is to impose a sentence upon each offender that is appropriate to the offense and the offender.
Review of sentences imposed by sentencing courts is a judicial function to be performed by appellate courts. In general terms, however, it is that power which is brought to bear in making binding determinations as to rights, liabilities, powers, duties or status put in issue in justiciable controversies, and in making adjustment of rights and interests in accordance with legal standards. It is a power which is exercised in accordance with the judicial process and in that process, many specific and ancillary powers are also exercised. Sentencing under Commonwealth legislation is an essentially judicial function.
I also find that section 25 3 of the Penal Code [48] offends the provisions of Article 1 of the constitution, in that it confers powers to the president to determine period of imprisonment of persons under 18 years which is a judicial function contrary to the constitutional doctrine of separation of powers.
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The issue of the exercise of mercy by the executive was addressed by the Privy Council in Reyes vs R. Lord Hoffmann in the above cited case summarizing the law on the subject stated at paragraph 44 as follows It is plain that the Advisory Council has a most important function to perform. But it is not a sentencing function…Both in language and literature mercy and justice are contrasted.
The administration of justice involves the determination of what punishment a transgressor deserves, the fixing of the appropriate sentence for the crime. The grant of mercy involves the determination that a transgressor need not suffer the punishment he deserves, that the appropriate sentence may for some reason be remitted. The former is a judicial, the latter is an executive, responsibility. In the exercise of judicial power, the courts ought to be independent and not to be subject to the control or direction of any person or authority. The Constitution prohibits all forms of interference with Courts or judicial officers from any person or authority.
Judicial power is derived only from the people and is exercised by only the courts established under the Constitution. The independence of the judiciary is a cornerstone for the realization of a democratic governance and in it is hid the realization of the judiciary as a sure guarantor of human rights and civil liberties. The Constitution provides for the separation of powers between the Executive, the Legislature and the Judiciary. Thus any law which has the effect of tying the hands of the judiciary in executing its function to administer justice is inconsistent with the Constitution.
It is beyond dispute that to sustain a democracy in the modern world, an independent, impartial and upright judiciary is an absolute necessity.
Therefore, the Constitution, laws and policies of a country must ensure that the justice system is truly independent from other branches of the State. Judicial independence is recognized in many international and regional human rights instruments as one of the cornerstones of good governance.
The principle is also enshrined in all democratic Constitutions. It involves two tenets; a judicial power must exist as a power separate from and independent of, executive and legislative power and; b judicial power must repose in the judiciary as a separate organ of government, composed of persons different from and independent of those who compose the executive and legislature.
A democratic Society calls for a strong and independent judiciary and a commitment by the State to the rule of Law. An independent judiciary is central to the protection of human rights, promotion of good governance and as a check on executive abuses. It is an essential check and balance on other branches of the government, and in ensuring that laws of the legislature and acts of the executive comply with the Constitution.
The application of the concept of "Implied Repeal". According to principles of construction if the provisions of a later Act are so inconsistent with or repugnant to those of an earlier Act that the two cannot stand together, the earlier Act stands impliedly repealed by the latter Act. The former must be taken to be repealed by implication. The same position was restated in United States vs. Borden Co [57] where the court rendered itself as follows In Steve Thoburn vs.
Sunderland City Council [58] the court stated that Tiomin Kenya Ltd , [62]. The…… Act being a more recent Act must be construed as repealing the old Act where there is inconsistency The court does not construe a later Act as repealing an earlier one unless it is impossible to make the two Acts or the two sections of the Acts stand together i. Justice A.