Judges are the guardians of justice. They are supposed to be independent and impartial in the exercise of their judicial powers, they are not supposed to be under the direction or control of any other authority but the constitution and the law. This is the dictate of section of 120 subsection (1) of the constitution which reads:
“In the exercise of their judicial functions, the courts, the judges and other holders of judicial office shall be independent and shall be subject only to this Constitution and the law, and, save as provided in this Chapter, shall not be subject to the control or direction of any other person or authority.”
When a judge finds a person guilty before sentencing the person the person has a right to be heard. The reason for this is simple. A court has power not to convict a person after he or she is found guilty. This is why the person is accorded the opportunity to make a plea in mitigation.
Section 244 of the Criminal Procedure Code makes it a duty for judges to inform those guilty to have their say. It reads:
“If the accused person is found guilty or pleads guilty, it shall be the duty of the judge to ask him whether he has anything to say why sentence should not be passed upon him according to law, but the omission to ask him shall have no effect on the validity of the proceedings.”
This is very clear. Judges are duty bound not to deprive accused persons of this opportunity. Needless to say, only judges who forget their duty could be absolved if they deliver judgment without listening to what the accused person has to say. Justice is not vindictive. The courts are courts of justice, but also courts of mercy. That is why final judgment must be influenced by both. It is not always necessary to punish an accused person. This is why judges are given discretionary powers to mitigate punishment after finding a person guilty.
For example section 267 subsection (1) of the Criminal Procedure Code states:
“Where any person is charged with an offence not punishable with death and it appears to the court that the charge is proved but that having regard to the age, character, antecedents or physical or mental condition of the offender and to the circumstances in which the offence was committed or to the trivial nature of the offence, it is expedient that the offender should be released on probation, the court may, instead of convicting and sentencing him at once to any punishment, order that he be released on his entering into a recognisance, with or without sureties, to appear for conviction and sentence when called upon during such period (not exceeding three years) as the court may direct, and in the meantime to keep the peace and be of good behaviour.”
We hope the courts and judges will be mindful of their duties at all times. This is how to build the integrity of the courts.