A convicted sex pest has secured a shorter jail term than the 15 years minimum sentence prescribed in law upon conviction for gang defilement, opening the door for lenient sentences inconsistent with punishment in the Sexual Offences Act.
Francis Matondo Ogeto was found guilty of the offence of gang defilement contrary to section 10 of the Sexual Offences Act and sentenced to 15 years imprisonment by a magistrates court in Mavoko.
Section 10 provides that a person found guilty of gang rape is imprisoned “for a term of not less 15 years, but which may be enhanced to imprisonment for life.”
However, on appeal, High Court judge George Odunga reduced the sentence to 10 years, arguing the opinion of the Supreme Court with respect to mandatory sentences apply with equal force to minimum sentences or non-optional sentences.
The Supreme Court decision in Francis Karioko Muruatetu and another versus Republic set aside the mandatory death sentence and Justice Odunga was of the view that under the current constitutional dispensation, mandatory minimum sentences ought to be looked at in light of Article 27 of the Constitution.
It provides that “all law in force immediately before the effective date continues in force and shall be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with this Constitution.”
Justice Odunga also noted in Motondo’s case, the appellant was a first offender.
“He was not the principal defiler of the complainant,” the judge observed. The victim, 17, had been fired from her job as a house girl in Kasarani and was heading to town at around 3pm on June 13, 2015.
She alighted at Utawala near Equity Bank and as she walked to the stage some boys inquired what she was doing there. She told the magistrate’s court that one of the boys informed her that he had a sister who was looking for a house-help and was paying Sh7,000. That boy was in the company of the appellant. But they took her to a room and defiled her.
Justice Odunga argued although the Sexual Offences Act prescribes different jail terms for each set of ages of the victims, it fails to appreciate that the gravity of the offence may not be the same.
“Some offences of defilement are committed in very gruesome circumstances while others are committed after occasioning serious bodily injuries to the victim. Others are committed in the very site of other members of the victim’s family while others are committed by persons who are almost the age groups of the victims in circumstances that if the law did not presume lack of consent in such offences, it might well be concluded that there might have been connivance,” he said.
“This court does not condone offences against minors and vulnerable persons,” Justice Odunga declared but added “to treat offences as the same notwithstanding the aggravating circumstances, clearly violates the right to dignity as the offenders are thereby treated as a bunch rather than as individuals.”
Odunga cited provisions in the Act that could offer a loophole for those convicted of gang rape to get away with lighter sentences compared to anyone found guilty of defiling a child aged below 11 years.
Section 8(2) states that a person convicted of defiling a child aged 11 years or less “shall upon conviction be sentenced to imprisonment for life.”
The judge argued there is some “unreasonableness” in the sentencing under section 8(2) vis-à-vis section 10 of the Act.
He explained the unreasonableness is due to the fact that a person who, for all intent and purposes commits an offence under Section 10 may well “get away” with a lighter sentence simply because he was in the company of other persons.
On the converse, the judge observes,“a lone ranger” who commits an act which for all intent and purposes amounts to an offence under Section 10 thereof faces a prima facie mandatory life sentence.
“Such sentencing may well be challenged on the ground of unfairness,” Justice Odunga said in a judgement dated October 3.
On Motondo’s case, Odunga noted: “Considering the definition of gang rape, I am satisfied that the appellant was properly convicted of the offence and the said conviction cannot be faulted.”
“As regards to the sentence, the section states that a person convicted of such offence is liable to imprisonment for a term of not less than 15 years but which may be enhanced to imprisonment to life.”
The judge went on: “In this case, however, the relevant provisions use the phrases “shall be liable” and “not less than” in the same breath. As a result, the provision suffers from the malady of poor legal draftsmanship since the two phrases imply, in legal terms, diametrically opposed positions. In criminal law, where there is an ambiguity in phraseology of sentencing, the accused is entitled to the benefit of the least severe of the prescribed punishments for an offence.”
“It is therefore my view that the section must be read as if the sentence provided is the maximum sentences. Accordingly, bearing the totality of the above principles in mind, it is my view that the use of the words “shall be liable to imprisonment” in section 10 of the Sexual Offences Act gives room for the exercise of judicial discretion,” Justice Odunga stated.
Justice Odunga’s observations escalates differences among judges on sentences provided under Sexual Offences Act. There are those aligned that the mandatory nature of the sentences in the Act cannot change while there are those of the view that the Act should be changed, factoring in that there are underage girls engaging in illicit sex while young men are languishing in jails for many years.
Justice Njoki Ndung’u in a presentation before her peers during this year’s judges’ colloquium held in Mombasa in August this year was of the view that the Act does not give judicial officers an opportunity to vary the sentences meted on a sexual offender hence anyone convicted should not get anything lower than the prescribed jail term.
“There is need to uphold mandatory minimums where they have not been challenged and declared unconstitutional. Where there is specific and reasoned provision for minimum sentences the courts ought to uphold them.To do otherwise means that judges are in essence imposing a lesser penalty than what is required by law without actually striking down the offending provision,” she said.
In March this year, appellate judges proposed a change in law to lower the age of consent to 16 years.
Justices Roselyn Nambuye, Daniel Musinga and Patrick Kiage, ruled that time was ripe for the country to consider changing the Act citing lengthy jail terms imposed on young men convicted of defilement.
They made the observation in a case where they reversed a 15-year sentence slapped on a man who had impregnated a 17-year-old girl.
According to the judges, the country should discuss challenges of maturing children, morality, autonomy, protection of children and the need for proportionality in punishing sex pests.
They said debate on lowering age of sex consent was long overdue as men were languishing in jail for sleeping with teens “who were willing to be and appeared to be adults”.
The judges in their verdict in March this year referred to the sentences as an unfolding tragedy.
Umpteenth time
“This appeal epitomises for the umpteenth time the unfair consequences that are inherent in a critical enforcement of the Sexual Offences Act, No 3 of 2006 and the unquestioning imposition of some of its penal provisions which could easily lead to a statute-backed purveyance of harm, prejudice and injustice, quite apart from the noble intentions of the legislation. Our prisons are teeming with young men serving lengthy sentences for having had sexual intercourse with adolescent girls whose consent has been held to be immaterial because they were under 18 years,” the judges ruled.
Following the verdict, Chief Justice David Maraga in May joined those rallying for change of the Act to factor in growing number of adolescents engaging in sex.
The judiciary’s head proposed that judges and magistrates “should be left to deal with the minors” who engage in consensual sex, instead of lowering the consensual age to 16 or continuing to jail offenders.
He, however, pointed out that adults defiling minors should get the sentences spelt out in the Act.
