General deterrence as a satisfactory justification for punishment
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Date
2005
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Abstract
It is a universal phenomenon that peace, law and order only exist where justice prevails. Justice is an ingredient of the rule of law. In Namibia crime has become a topical issue. The nation focuses its attention and its fears on the threat of crime. Rights which are guaranteed by the law particularly in the Constitution of the Republic of Namibia such as a right to liberty; to own property and right to dignity are violated by offenders with impunity. For many, the criminal justice system has become soft on crime. It seems deterrent punishments are no longer imposed by the courts. Courts have apparently lost sight of the fact that the law does not only protect the rights of accused and convicted persons, but also those victims of crime. Restorative justice has not found emphasis in the punishment meted out by the courts. The legislature has done little in enacting legislations for the more effective combating of crimes in the country. When hearing the views canvanced by the public, not even the re-introduction of capital punishment is sparred from the list of proposed solutions to the crime. It is however not possible to re-introduce capital punishment given our current Constitution which outrightly outlaws capital punishment in Article 6. Also canvanced by the public is the re-introduction of corporal punishment which has also been declared unconstitutional by the Supreme Court. The acclaimed African leader, the late and former Tanzanian President Julius Nyerere in his book – Freedom and Socialism 1968 pp 110 – 112 says:
“Justice demands many things. It demands that the innocent
be assured of personal security and also that the guilty should
be punished. It demands impartiality between citizens – that
the law should be the same for all. And it demands
an understanding by the judiciary of the people and by the people of the judiciary, for without this mutual understanding the people’s basic sense of justice in their relations with each other may be outraged by the very instrument which they
have created to implement justice” Motives for punishment have been changing from century to century. During our current century, punishment should be influenced by not only the protection of the fundamental rights of those who have wronged against the law but also those whose rights have been violated by the offenders. Certainly the law-abiding citizens country-wide demand drastic and effective action by the State and Judiciary to protect the rights of law-abiding citizens, the victims of crimes and potential victims. This is what the Constitution which is the supreme law provides. Strong measures are necessary to protect the Namibian society. It is recommended in this thesis that the current Criminal Procedure Act be overhauled if not repealed so that a new Namibian Criminal Procedure Act which will underline the need for the courts to serve justice is enacted. The new Act should make provision for life imprisonment with the possibility of remission, parole or probation as well as life imprisonment without the possibility of remission, parole or probation depending upon the gravity of the crime committed. Mandatory minimum sentences should be provided for, for serious crimes such as murder, kidnapping, child stealing and robbery with aggravating circumstances. For those found guilty of fraud or misappropriation of public funds, the Act must make room for the Court to order compensation which shall have the effect of civil judgment. It is also recommended for the reintroduction of whipping on male offenders under the age of 21 years, provided the whipping is inflicted in a moderate manner and proper safeguards are put in place. Legislation should therefore be enacted that makes provisions that victims or their families be accorded the right to bring to court’s attention the harm they have suffered as a result of crimes of violence against the person. The court should be empowered by the law in serous crimes to mero motu ask for victim’s impact statement if the court so desires. It is recommended that the judicial officers should play more active role in their efforts to do justice. Our criminal system should become more inquisitorial rather than adversarial in approach if the criminal system has to live by the letter and spirit of the Namibian Constitution. By the time this research was concluded a new Criminal Procedure Act has been enacted though it has not yet come into operation. It provides for quite a number of issues recommended in this research. Though the new Act is not all encompassing, it has addressed substantial shortcomings in the present Criminal Procedure Act.
Description
Submitted in partial fulfilment of the requirements for the LLM Degree
Keywords
Deterrence, Punishment