Should I advise my brother to go into hiding?

The court said my brother would serve a community sentence, but some community members seem unhappy with this decision and are scheming to punish him.

Photo credit: Shutterstock

Dear Sir,

I am disturbed by what people in the village say about my brother. He was arrested and prosecuted for selling illicit alcohol. The court decided that he would serve a community sentence. Some community members seem unhappy with the court’s decision and are scheming to punish him for risking the lives of their youth who consume the illicit brews he purportedly supplies. Should I tell my brother to go into hiding?

Worried one

Hi worried one,

Your concern is valid, and it specifically calls to mind the little or controverted understanding that sections of the public have regarding the court process and especially the sentencing part.

Judges and magistrates, while doing their work, are guided by several legal and policy instruments despite the discretion powers available to them while making decisions. On criminal matters, the Penal Code is one of those instruments used by judges and magistrates, having listened to submissions by advocates and prosecutors representing the interests of the public or state to determine the kind and degree of punishment afforded an accused person who is found guilty of the offences presented before a court. This is read and applied together with the Sentencing Guidelines.

The Penal Code is a criminal justice instrument that defines and codifies offences and similarly provides proportionally considered punishment for each. Punishment in its application should be defined and seen within the penta-purposes of criminal law, which include retribution, deterrence, rehabilitation, restoration, and incapacitation, otherwise referred to as incarceration.

The five-aspect castigation is served as a custodial or non-custodial punishment, which, in layman’s expression, speaks to an offender complying with a court decision while in or out of prison. The court must establish that confining or not confining an offender while serving their sentence is beneficial to themselves, the state, and the society for which they wronged.

Community Service Orders (CSO) is one of those sentences, recognised in Section 24 Clause (b) of the Penal Code and given life by the Community Service Orders Act, No. 10 of 1998. A sentence is a court pronouncement indicating how a person should be punished for wrongdoing. This can be in the form of a fine, imprisonment, and probation, alongside other mechanisms it may find fitting. Therefore, as stipulated in Section 3 of the CSO Act, a community service order is where a person, such as your brother, is convicted of an offence punishable by imprisonment whose term does not exceed three years. Or where imprisonment exceeds three years, but the court determines a term of three years or less. However, it will not matter that such a term had a fine on it.

Based on this provision and the discretion of the judge or magistrate before whom, the matter is canvassed, the court can require an offender to perform community service.

Community Service, as provided for in Section 3 Clause 2 Paragraph (a), comprises unpaid work within a community for the benefit of that community for a period not exceeding the term of imprisonment for which the court would have sentenced the offender. However, before a magistrate or judge prescribes community service, it shall heavily rely on a pre-sentence report given by the community service officer working under Probation and After Care service, which often is a directive of the court to determine the relationship and circumstances of the offender to the case at hand, as contextualised within the dynamics of the community where likely the offense was committed.

Community services are determined by the court in consultation with the community service orders’ committee attached to it and may comprise public works, including construction of public roads, afforestation work, environmental conservation and related enhancement, water conservation, management, distribution, and supply projects, maintenance of public schools, hospitals, besides other public social amenities.

It also entails a convicted person rendering professional services in the community for the benefit of such community. Under Section 3 Clause 7 of the CSO Act, a court that convicts and assigns this punishment must give copies of the order to the community service officer of the area where the offender resides or will reside while serving the sentence.

If the convicted person breaches any condition or requirements of the community service order, the court, upon being moved by the community service order officer or supervisor, may, as prescribed in Section 5 of the CSO Act, do the following: Issue summons for the offender to appear before it at a specified time or issue a warrant for the offender to be arrested and brought before it.

Upon hearing the offender, the court may caution the offender and require them to comply with the order. It may also amend the order to reflect the circumstances of the case, or revoke the order and impose any other sentence under the law as the court deems appropriate.

The primary purpose of community service is to promote justice in a way that advances the rehabilitation, restoration, and reintegration of an offender into society. Where it is applied during the reviewing of sentences, let readers remember that the purpose often is the pursuance of justice through a decongestion process. The discourse of decongestion must never be magnified to replace the concept of justice and human rights since the two are incomparable, and the former cannot replace the latter.

The community needs to appreciate community service orders being a sentence under which offenders acknowledge their wrongdoing and agree to serve their punishment within the precinct of public service as a way of apologising and making a promise not to repeat such an offence.