Mandatory and Discretionary Sentences

A discretionary sentence is when the law has given the courts a wide discretion to impose a sentence up to a maximum amount. These are the majority of sentences in Tanzania. For example, the offence of manslaughter has a maximum sentence of life imprisonment. The court may provide any punishment up to this maximum.

A mandatory sentence must be applied in each case by the courts. In some circumstances, the law has made it clear that there is only one punishment for an offence. For example, the only punishment for murder is death. However, it is more common for the law to set out a mandatory minimum sentence for an offence. These may be created under the Minimum Sentences Act but increasingly under any criminal statute. For these offences, the courts must impose at least the minimum sentence.

Mandatory sentences arose due to, among other reasons:

a) Abuse of judicial discretion in assessing sentences;

b) Disparities in sentencing for persons convicted of the same offences;

c) The need to confine certain offenders reputed to be dangerous to the community for a long time; and

d) To avert an increase of certain type of social evils, e.g. sexual offences.

The form of the wording of a statute is important to determine whether a punishment is mandatory or discretionary. The courts have held that if the law reads: “shall be liable to be sentenced” then this sets out a discretionary sentence up to a maximum amount. For example, the punishment for manslaughter is: “Any person who commits manslaughter is liable to imprisonment for life.” The maximum sentence is “life imprisonment” but the courts may sentence the convict for up to this period. In other words, the sentence can range from absolute discharge to life.

If the law states that a person “shall be sentenced to …..” then the punishment so prescribed, is mandatory. For example, the punishment of murder is death. This is because the law states that: “A person convicted of murder shall be sentenced to death.”