Battle to abolish mandatory sentences for sex offenders now before Supreme Court

The DPP's battle with Joshua Mwangi Gichuki has revived the debate over whether it is constitutional to impose mandatory sentences on offenders, or whether it should be left to the court to decide the appropriate sentence in each case.

"It is the respondent's submission that no two crimes are the same and therefore the consequences faced by criminals ought to be different," Senior Assistant DPP Duncan Ondimu said.

Ondimu believes sex offenses are heinous and should be treated differently, especially when the victims are vulnerable.

Appeal

The DPP has appealed against the verdict of Court of Appeal judges Wanjiru Karanja, Patrick Kiage and Jamila Mohammed, arguing that Kenya's law lacks safety valves to ensure victims receive justice and that convicts do not repeat the offense.

He asserts that the Court of Appeal made an error by reducing Gichuki's sentence, as he had not raised the same issue before the High Court.

He explains that the sentences provided do not compromise the independence of Judges and Magistrates. As per the lower court, the Act violates the principle of 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 said. The debate over whether the country should change the Sexual Offences Act has been ongoing for years.

However, there is no consensus on the constitutionality of punishing sex offenders based on the sentences provided under the Act. Some judges argue that mandatory sentences should remain, citing the initial case on mandatory death sentences which only involved convicts found guilty of murder.

Francis Muruatetu's case on mandatory death sentences caused confusion regarding whether rapists, paedophiles, and armed robbers had recourse to automatic minimum sentences upon conviction.

Re-sentencing

The landmark judgment in 2018 led to thousands of appeals for re-sentencing, which created confusion among judges and magistrates about whether other sentences given to offenders in criminal cases could benefit from this precedent.

In 2021, the Supreme Court agreed that the famous Francis Muruatetu case, in which he challenged the mandatory death sentence, only applies to murder cases.

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 resentenced.

In a 2019 case filed by Sammy Musembi, Nicholas Ndetei, Sammy Kitonga, John Muoki and Peter Mumo, Justice George Odunga, who is now a Court of Appeal Judge, ruled that they are entitled to a remission of a third of their sentences.

Circumstances

The Sexual Offences Act states that if someone sexually assaults a minor between the ages of 12 and 15, they will be sentenced to a minimum of 20 years in prison.

If someone engages in sexual activity with minors between the ages of 16 and 18, they will receive a minimum sentence of 15 years. Those who sexually assault children under the age of 11 will receive a life sentence.

Justice Joel Ngugi has made a ruling in a case filed by John Kagunda Kariuki, stating that judges and magistrates are allowed to hand down sentences based on the circumstances of each case, even if they are not prescribed by the law. This decision was influenced by Muruatetu's case.

"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 judgment 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 principle, we are persuaded that there is no rational reason why the reasoning of the Supreme Court in Francis Karioko Muruatetu & another V. Republic, Sc Pet. No. 16 Of 2015, which holds that the mandatory death sentence is unconstitutional for depriving the court's discretion to impose an appropriate sentence depending on the circumstances of each case, should not apply to the provisions of the Sexual Offences Act, which do exactly the same thing," they said.

Not applicable

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 child.

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. 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 2019, three judges - Roselyn Nambuye, Musinga and Patrick Kiage - said time was ripe for the country to consider changing the Sexual Offences Act, citing lengthy jail terms imposed on young men convicted of defilement. They suggested that the country should lower the consent age to 16. Mwangi is a convicted sex offender after he was found guilty of defilement and an alternative charge of committing an indecent act with a minor.

He is said to have committed the act on March 8, 2011, where he allegedly raped JWM, who was 15 at the time. In the case, the prosecution produced five witnesses with the star witness being the victim JWM, her father, an attendant at the hospital and the arresting officer.