Civil Society Organisations (CSOs) have taken to the street as they demand mandatory minimum sentencing for sexual violence offenders upheld, as they presented a 16-demand petition for the protection of survivors.
The CSOs who took to the street on December 9 said recent court judgments from the Machakos High Court, the Mombasa High Court and the Court of Appeal in Nyeri that termed the mandatory minimum sentencing unconstitutional failed to take a survivor-centred approach.
According to the CSOs, the judgment which has resulted in convicted sexual offenders applying for resentencing in courts also grants judicial officers unfettered discretion to issue sentences for sexual offences.
The Centre for Rights Education and Awareness (CREAW) in partnership with the CSOs said the judgments have rolled back on the gains made by women's rights movements over the years to ensure that gender-based violence is treated with the urgency and seriousness it deserves.
"It will also embolden perpetrators who will no longer be deterred by the law," CREAW's Executive Director Wangechi Wachira said.
In May this year, a judge in a landmark decision issued a judgment terming the mandatory sentencing as prescribed in the Sexual Offences Act as unconstitutional.
Justice George Odunga, through his judgment, had given hundreds of sex offenders a chance to have courts review their sentences.
The judge further gave magistrates and judges handling sexual offence cases the freedom to decide on the sentences they deemed fit for the offenders without necessarily relying on the Sexual Offences Act.
According to the judge, strict application of the Sexual Offences Act had caused injustices to male offenders who he said were denied the opportunity to evaluate the circumstances of their case.
The judge argued that punishment under the Sexual Offences Act deprived the court of its discretion to pass sentences.
The CSOs who petitioned the Chief Justice marched to her office demanding that the Judiciary fulfil its obligations to survivors of sexual violence by upholding the mandatory minimum sentences for sexual offences.
"It is only the minimum sentences for perpetrators that will ensure continued justice for survivors," CREAW's Strategic Litigation Advocate Winnie Odali said.
In the petition, the CSOs listed 16 demands that would help end violence against women and girls in which they wanted the Judiciary to address.
They include ensuring the Judiciary is fully equipped to effectively interpret and enforce gender equality rights, provide appropriate and accessible protective mechanisms to prevent further violence against victims with ongoing court cases and punish the perpetrators of violence against women and ensure that such punishment is commensurate with the offence committed.
Additionally, the CSOs want the Judiciary to develop comprehensive preventive approaches that ensure that secondary victimisation of women does not occur because of laws, practices and procedures that are insensitive to gender considerations.
Moreover, they demand that the judiciary reform existing discriminatory laws and practices in order to promote and protect the rights of women and girls, and take all legal measures necessary to provide effective protection of women against gender-based violence, including criminal sanctions among others.
Chief Registrar of the Judiciary Ann Amadi who received the petition on behalf of the Chief Justice noted that the Judiciary remained committed to dispensing justice and was accountable to those they serve.
"It is the hope the petition will lead to the upholding of the minimum mandatory sentencing that will offer more protection to survivors and punish perpetrators," Ms Amadi said.
