Mandatory minimum sentencing is bad for perpetrators and victims

The High Court declared that MMS are unconstitutional in 2022. [iStockphoto]

Over the past two years, there has been a debate within the court system on whether mandatory minimum sentences (MMS) as prescribed in the Sexual Offences Act are constitutional.

The High Court in 2022, basing its ruling on the famous Muruatetu case, declared that MMS are in fact unconstitutional. The Muruatetu case addressed itself to the question of life sentences for murder, and the precedent it set in declaring these to be unconstitutional has produced a trickle-down effect that is much needed.

Within civil rights organisations, particularly those that represent women's rights, there has been some uproar over the removal of MMS for those found guilty of sexual offences. It has been argued by some of these organisations that the MMS remains in place in order to keep women protected from perpetrators. But this argument is, at best, reactionary, neither serving the interests of women nor going to the root of the purpose behind sentencing and imprisonment.

If the purpose of sentencing sex offenders is deterrence for those who may think of committing similar offences, it is clear that no such effect has been felt in society. Only this past January, women took to the streets to protest the marked increase in femicide cases being reported in the country. And whilst femicide speaks to murder specifically, it also points to an attitude towards women that allows that they be violated on the basis of their gender, violation that included sexual offences. Looking at statistics, one finds that, since the introduction of the Sexual Offences Act, cases of sexual offences have plateaued, not decreased.

Another reason why sentences are so harsh is in order to ensure retribution, or punishment. It can be argued that the pursuit of punishment is moot. Whilst a number of those imprisoned do reform, it makes reasonable sense that a sentence of life imprisonment does not achieve this aim. Rather, these sentences make clear the intention of locking up some people away from society forever, which in itself is both unconstitutional and inhuman as it leaves no room for changed behaviour.

Ideally, the reasoning behind prosecuting offenders for sex offences should be both reparative or restitutive, and rehabilitative. Once harm is caused, the aim should be to seek justice for victims. This justice should aspire not to hide away perpetrators forever, but to ensure that victims are left feeling that they have gained some redress from bringing forward the case. Abolitionists would argue that imprisoning offenders does not bring any repair to the victim, as restitution is left in the balance, never to be achieved, whilst offenders are locked behind bars. And what happens once the prison sentence is served? How do victims regain their peace once the offender is let back out into society? What if the outlook of the offender has not changed during this period?

An ideal society would be one that focuses on each case on its own merits. In many of the sexual offences brought before the courts, both the purported offender and the victim are minors, meaning that the question of who has harmed whom is left up to gender bias; it is assumed that the male partner in the equation is the perpetrator whilst the victim is the female. This assumption does not serve true justice; it only looks at the facts of the case from a place of bias without addressing the actuality of the relationship between the parties. Moreover, we must consider that, in adjudging crimes, sentencing does not take away from the fact that harm has already been caused and cannot be undone.

Society needs to address itself to changing the attitudes of the populace towards the harming of gender minorities. It is imperative that we question the attitudes and beliefs behind the harming of women, rather than hide our hands and lock away those who have blindly accepted that women are vulnerable members of society who deserve abuse. In this way, sexual offences will reduce, and fewer persons will end up in prison.

-Ms. Gitahi is a researcher and PhD candidate