Sexual offenders have been given hopes for lighter sentences after the High Court declared it is unconstitutional to punish them with mandatory lengthy jail terms.
Justice George Odunga also opened the gates and gave a second chance to hundreds of sexual offenders who were handed the minimum and maximum jail sentences prescribed in the Sexual Offences Act to petition any High Court for a review of their sentences.
The judge, in the landmark decision, gave judges and magistrates handling sexual offences the freedom to decide the appropriate sentence without restricting themselves to the minimum sentence as prescribed in the Sexual Offences Act.
“My finding does not mean the court ought not to mete out the mandatory minimum sentence. It means that the circumstances of the offence must be considered and having done so nothing bars the court from imposing such sentences as are appropriate,” ruled Odunga (pictured).
According to the judge, the minimum mandatory sentences for sexual offences do not permit the court to consider peculiar circumstances of the case in order to arrive at an appropriate sentence on whether a lesser punishment is appropriate in the circumstances.
He ruled that strict application of the Sexual Offences Act has caused injustices, especially to male offenders by denying the trial court the opportunity to evaluate the circumstances of the case like instances where female victims are also to blame for their actions.
He stated that since punishment under the Sexual Offences Act deprives the court of its discretion to pass a sentence, it has to be struck out as being unconstitutional not because it is unlawful but because it it does not permit the court to consider other sentences appropriate to the case.
“The court does not doubt the good intentions of the drafters of the Sexual Offences Act in taking steps to curb the menace and trauma it causes to the victims. The perpetrators must be condemned by all means but the sentences to be imposed must meet the constitutional dictates” ruled Odunga.
Justice Odunga added that since sexual offenders qualify to be considered for probation, it shows a lack of faith in the judicial system to have a free hand in choosing the right sentence by not considering the probation report given the mandatory sentence.
He ruled that the fact that a trial court may err in the imposition of sentences ought not to be a reason for taking away judicial discretion and handing it over to the legislature. The judicial system provides for an appellate process where parties are dissatisfied with decisions of the lower court.
“To remove from the courts, the power to mete appropriate sentences merely because the lower courts or any other court for that matter are not imposing sensible sentences in my view amounts to a judicial coup,” ruled Odunga.
The case was filed by Philip Maingi, Nathan Makokha, Peter Kago, Simon Thengi, Mwangangi Muthui and Joseph Kamau who are convicts for sexual offences. They sought the abolition of the minimum and maximum sentences for sexual offences on account that they are unconstitutional.
The Sexual Offences Act provides that a person found guilty of rape is liable to a sentence not less than ten years or life imprisonment while those for attempted rape get a term not less than five years or life imprisonment.
The minimum sentence for sexual assault is 10 years, forced indecent act attracts a minimum term of five years while indecent acts with a family member or a person with a mental disability has a minimum ten years jail sentence.
For defilement of children below 11 years, the Act provides for life sentence, 12 years imprisonment for a child between 12 and 15 years and a minimum of 15 years in jail for children between 16 to 18 years.
Justice Odunga stated that taking cue from Francis Muruatetu case where the Supreme Court abolished the mandatory death sentence for capital offences; it is time other laws enacted before the 2010 Constitution are amended to respect people’s dignity and right to fair trial.
“In my view, the opinion of the Supreme Court with respect to mandatory sentences applies with equal force to minimum sentences or non-optional sentences. Mine is not a lone voice crying in the wilderness but backed by other decisions from other courts,” ruled Odunga.
He declared that those who were convicted of sexual offences and whose sentences were passed on the basis that the trial courts had no discretion in imposing the mandatory sentences are at liberty to seek a review from the High Court.