The fundamental principles of legality are contained in the Universal Declaration of Human Rights, the European Convention on Human Rights, the International Covenant on Civil and Political Rights and the Geneva Convention: The principle of legality grants the accused the right to be convicted and punished only in accordance with a law in force. This principle is enshrined in Article 50(2)(n) of the Constitution. It obliges the State to punish an act or omission that did not constitute a criminal offence under Kenyan or international law at the time it was committed or omitted. The principle of legality is enshrined in the Latin expression “nullum crimen sine lege, nulla poena sine lege”, which roughly translates to “no crime and no punishment without law”. The principle of legality implies, in essence, that criminal liability and punishment are based only on the prior adoption of a sufficiently precise and unambiguous prohibition. The principle of legality is the legal ideal that requires all laws to be clear, verifiable and not retroactive. It obliges decision-makers to resolve disputes through the application of previously declared legal provisions and not to retroactively change the legal situation by discretionary deviations from the applicable law. It is closely linked to legal formalism and the rule of law and dates back to the writings of Feuerbach, Dicey and Montesquieu. This principle is particularly relevant in criminal and administrative law. In criminal law, this translates into a general prohibition on imposing criminal sanctions for acts or omissions that were not punishable at the time they were committed or omitted. The principle is also considered violated if the penalties for a particular offence are increased retroactively.
In administrative law, this translates into the desire of public servants to be bound by the law and to apply it rather than acting on a whim. As such, proponents of the principle are generally opposed to discretion. The principle can be expressed differently in Latin expressions such as nullum crimen, nulla poena sine praevia lege poenali, nulla poena sine lege and nullum crimen sine lege. The numerical value of the principle of legality in Chaldean numerology is: 9 “principle of legality”. Definitions.net. STANDS4 LLC, 2022. Web. January 13, 2022.
. At the end of World War II, the status of the principle of legality was mixed worldwide. Although many countries have constitutional provisions that require the establishment of crimes and penalties by law, they do not explicitly require a prohibition on retroactivity. At the same time, there were explicit provisions in many countries. After all, in many countries, legality was not mentioned in the constitution at all. The doctrines that make up the principle of legality include the abolition of existing common law penal doctrines, the prohibition of the judicial creation of new penal provisions, special provisions requiring a narrow interpretation of penal laws, the prohibition of criminal laws a posteriori, the prohibition of the retroactive application of judicial interpretations that modify penal provisions, and the appropriate invalidation of criminal laws. waves. [1] The principle of legality is now part of customary international law.
The majority of states have constitutional provisions that establish the right to “no crime or punishment without law.” The majority of those who do not have such constitutional provisions have codified rights through laws and treaties. In conflict with the principle of legality, the rule that legal codes must be interpreted reasonably so as not to thwart the legislative process. Acts or omissions that constitute crimes in Kenya are defined in the Penal Code. For an act or omission to be tried and convicted as a crime, the prosecution must be prepared to present evidence proving the existence of each of the elements of the crime. Therefore, a person cannot be punished under a law that: Currently, non-retroactivity is practically a global norm. All but two Members of the United Nations accept the general non-retroactive effect of crimes and penalties by constitution, statute, treaty or a combination of these three legal forms. The two exceptions are Bhutan and Brunei. More than four-fifths of UN members (161 out of 192, or about 84%) recognize the non-retroactive effect of criminal definitions in their constitutions. More than three-quarters (145 out of 192 or about 76%) also apply the prohibition of retroactivity for penalties aggravated by their constitution [2].
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