The Director of Public Prosecutions has urged the Supreme Court to reverse the order by Court of Appeal outlawing mandatory sentences for sexual offences.
In his arguments before Kenya's apex court, the DPP argues that Members of Parliament were clear that sex pests are a danger to society if they are given lean sentences.
DPP's battle with Joshua Mwangi Gichuki has revived the debate whether if it is constitutional to hand offenders mandatory sentences or court should be left to rule on the appropriate sentence in each case.
"It is the respondent submission that no two crimes are the same and therefore the consequences faced by criminals ought to be different," Senior Assistant DPP Duncan Ondimu argued.
According to Ondimu, sex offences are heinous and should be treated differently, especially where the victims are vulnerable.
In his appeal against Court of Appeal Judges Wanjiru Karanja, Patrick Kiage and Jamila Mohammed's verdict, the DPP argued Kenyan law has no safety valves to ensure the victims get justice and ensure that a convict will not repeat the same.
He asserted that the Court of Appeal erred by lowering Gichuki's sentence as he had not raised the same before the High Court.
Ondimu also said that the sentences provided do not interfere with the independence of judges and magistrates. The lower court found that the Act violates the separation of powers.
"Legislation on mandatory minimum sentences is Parliament's way of guiding the exercise of Judicial discretion. Legislation on sentences is not separation of powers; instead, it is a means of putting checks and balances in the exercise of judicial direction," Ondimu argued.
The debate over whether the country should change the Sexual Offences Act has raged for years.
However, there is no unanimity on whether punishing sex offenders based on the sentences provided under the Act is constitutional or not.
There are Judges who have held that mandatory sentences should remain, since the initial case on mandatory death sentences only involved convicts found guilty of murder.
Francis Muruatetu's case on mandatory death sentence had brought confusion on whether rapists, paedophiles and armed robbers had a recourse for automatic minimum sentences upon conviction.
After the landmark judgement in 2018, thousands of appeals were filed for re-sentencing, creating confusion among judges and magistrates on whether other sentences given to offenders in the criminal cases could benefit from this precedence.
However, in 2021, the Supreme Court unanimously agreed that the famous Francis Muruatetu case, in which he challenged the mandatory death sentence, only applies to murder cases.
In effect, the decision by Chief Justice Martha Koome, Deputy CJ Philomena Mwilu, and Justices Mohamed Ibrahim, Smokin Wanjala, William Ouko, Njoki Ndung'u, and Isaac Lenaola ended hopes for convicts jailed over sex crimes and robbery with violence who are before lower courts seeking to be re-sentenced.
The first Judge to stir the debate was Justice George Odunga, now a Court of Appeal Judge.
Justice Odunga in a 2019 judgment, in a case filed by Sammy Musembi, Nicholas Ndetei, Sammy Kitonga, John Muoki and Peter Mumo found that they are entitled to a remission of a third of their sentences.
The Sexual Offences Act provides that a person convicted of defiling a minor aged between 12 and 15 should be jailed for more than 20 years, those accused of having sex with minors aged between 16 and 18 should get 15 years minimum, while those who defile children aged below 11 get life sentences.
Justice Joel Ngugi, in a case filed by John Kagunda Kariuki, said that Muruatetu's case had opened the doors for judges and magistrates to hand sentences that are not prescribed by the law based on the circumstances of each case.
Compelling reasons
"This progressive decisional law now requires courts to pay attention to individual aspects of the case while sentencing even for convictions under the Sexual Offences Act which have prescribed minimum sentences.
"Where there are compelling reasons to depart from the prescribed minimum, which is treated as indicative of the sentence to be imposed, the court can impose a different sentence," he said in a 2019 judgment.
He however pointed out that only those who had been handed death sentences under the unconstitutional law were entitled to have a fresh hearing. Others, he said, should file a new suit to challenge the sentences.
"To reiterate, only prisoners who had been sentenced to death pursuant to mandatory provisions of the law are entitled to new sentence hearings," he said.
"For all others, they are entitled to urge the new decisional law in their appeals in a bid to get lower sentences and no more. They cannot bring new applications for re-sentencing.
Among those who have reviewed sentences based on the Muruatetu judgement is a bench led by the new Court of Appeal president Daniel Musinga and justices Kathurima M'inoti and Agnes Murgor who lowered Jared Kiota Njiiri's sentence to 30 years from a life sentence.
In May, Justice Mary Kasango lowered the life sentence handed to Daniel Kihara Wanjeru to 20 years. Kihara was jailed for defiling a two-year-old baby.
Supreme Court Judge Njoki Ndung'u, in a paper presented before her colleagues at a conference in Mombasa in 2019, argued that the Muruatetu case was on the death penalty hence it could not be applied in other criminal cases like defilement and rape.
Justice Njoki opined that the Sexual Offences Act does not give judicial officers an opportunity to vary the sentence meted on a sexual offender "hence anyone caught in it 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," she said.
"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 added.
