NAIROBI: The minimum sentences for sexual offences continue to draw criticism from judges who want the law changed to allow them make independent decisions.
The judges' arguments are that the Sexual Offences Act has tied their hands and interfered with their discretion when determining the sentence to hand a suspect, even in cases where underage victims are the ones to blame.
Attorney General Githu Muigai has been seeking the opinion of candidates interviewed for the position of Chief Justice and those currently battling for the DCJ on how it should be changed.
"The country is faced by various dilemmas as a result of inconsistencies created by various legislation like the Sexual Offences Act. These are some of the tough questions my office has been grappling with and which the candidates needed to express their opinion," said Prof Muigai.
According to the AG, inconsistencies and dilemma created by the Act has been noted by his office and they are grappling with how to help the situation.
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Section 8 of the Sexual Offences Act provides that a person who defiles a child aged 11 or less shall, upon conviction, be sentenced to life imprisonment, while a person who defiles a child between the age of 12 and 15 is liable to imprisonment for a term not less than 20 years.
Those convicted of defiling children between 16 and 18 years are liable to not less than 15 years imprisonment while attempting to defile a child attracts a minimum of 10 years in jail.
Rape on the other hand is punished with minimum 10 years in jail, which can however be enhanced to life imprisonment.
Chief Justice nominee Justice David Maraga sympathised with young boys who have been jailed as a result of the Sexual Offences Act, saying the law was unfair to them and that it should be changed to allow judges determine the sentence depending on each case.
Justice Maraga proposed during his interview by the Judicial Service Commission that a special institution should be established for child sex offenders given that the issue is a deep societal problem that cannot be solved by having long jail sentences.
"We must understand that the young boys who are punished as a result of the Sexual Offences Act are our children who are trying to discover themselves and if we continue to punish them that way, then we are doing injustice. We need to relook into that law and amend it," said Judge Maraga.
When Justice Said Chitembwe set free a man serving 20 years in jail for defiling a 13-year-old girl in May, he noted that the country should think of a way of changing the legal age in which a girl should be mature for sex to avoid jailing even those have consensual intercourse with girls below 18 years.
According to Justice Chitembwe, it is unfair to send someone to 20 years imprisonment yet the complainant was enjoying the relationship, in recognition of the fact that young people are nowadays getting exposed to sex at a very early stage.
He gave the example of Spain where the age of consent for sexual intercourse used to be 13 years while marriageable age for a girl is 16 years and countries like Austria, Belgium, Bulgaria, Switzerland Czech Republic, Germany, UK and Hungary, where a girl or boy can get married at the age of 16.
"In South Africa, one can get married at 15 years. In Denmark, Slovenia, Ukraine, and Estonia, the marriageable age is 15 years with parental consent. I believe all these legal avenues are put in place to safeguard young people who nowadays get exposed to sex at a very early stage," said Chitembwe.
During his interview for the CJ position, Supreme Court Judge Jackton Ojwang, however, maintained that judges must stick to the law even if they have contrary opinion to what the law says.
Appellate Judge Alnasir Visram admitted that there are conflicting jurisprudence when it comes to the sexual offences law, but he declined to state his opinion saying some cases are ongoing before various courts and will only state his decision when they come before him.
Justice Mbogholi Msagha said it was unfortunate that the Act has tied their hands as judges when they should be allowed to make their own decision on the minimum and maximum sentence after assessing each case.
"The Act gives no way out and as a result, it has filled the prison with convicts who are almost bypassing people jailed as result of robbery with violence. It is time we advocated its repeal and amend the sentencing options," said Mbogholi.
Senior counsel Nzamba Kitonga was of the view that judges should not stick to the law if it has inconsistencies and should be creative in their decisions to avoid clogging prisons with sexual offenders.
US-based law lecturer Prof Makau Mutua argued that the country should not hide from reality of what is happening across the world, and that the Judiciary should take the frontline in amending such laws which interfere with their work instead of leaving it to Parliament.
Bungoma High Court Judge Lady Justice Abida Ali-Aroni also told the JSC during her interview for the DCJ that the Act was unfair to young boys found guilty of sexual offences, and that it should be abolished to give them room of deciding the punishment to impose.
Justice Aroni also defended her decision to release a 19-year-old boy who had been sentenced to 20 years in jail for defiling a 16-year-old girl, saying the jail term was unfair to the boy given that he committed the offence while he was still 16 years old.
"There is a problem with the law when it comes to young offenders. I wondered why the boy was punished and not the girl when they were both underage. Those are some of the things I considered before releasing the boy," said Judge Aroni.
During their annual meeting held in Mombasa in August, judges pleaded with Prof Muigai to find ways of amending the Act to remove clauses on the minimum sentence which denies them the independence to exercise their discretion in determining sexual offences.
Appellate judges Erustus Githinji and Patrick Kiage argued that each case should be determined on its own merit and circumstances relating to it, and that it is important to have an open discussion on the Sexual Offences Act.
