Court ruling on the sentencing of sexual offenders a recipe for crisis

The criminal justice system has for a long time been infamous for being unfriendly to survivors of violence. One aspect is trivialisation of sexual offences, manifested in the manner in which courts handed down varying sentences for similar offences. To cure this challenge, Justice Njoki Ndung’u (now a Supreme Court judge) introduced the Sexual Offences Bill, which was passed by Parliament.

The Sexual Offences Act was enacted in 2007 to make provisions about sexual offences—their definition, prevention and the protection of all persons from harm from unlawful sexual acts. The Act acknowledged the serious nature of the offences by setting mandatory minimum sentences where the accused is found guilty. That means the trial court may exercise its discretion in deciding what sentence to impose, so long as it does not fall below the prescribed minimum.

However, on May 17, the High Court’s Justice George Odunga (now an appellate judge) declared that the mandatory minimum sentences provided by the Act for sexual offences are unconstitutional. He said they limit the discretion of the court to determine the appropriate sentence.

This judgment was influenced by the Supreme Court decision in the Muruatetu case. This opens up the Pandora’s box of giving any prisoner who had been convicted of a sexual offence and sentenced on the basis that the court was bound by the mandatory minimum sentence to apply for resentencing.

Defilement increased

In Kenya, persons reported to have committed offences of defilement increased by 26 per cent from 5,397 in 2019 to 6,801 in 2020, accounting for 79.4 per cent of crimes against morality. Incest increased by 23.8 per cent, according to the “2021 Economic Survey”.

Kenya National Bureau of Statistics (KNBS) data show defilements increased to 6,801 in 2020 from 5,397 in 2019, a 26 per cent increase.

These statistics paint a grim picture of how widespread the scourge of sexual violence is across Kenya. Every other day, the media reports on gruesome acts of violence against women and girls while many more cases do not make it to the mainstream media.

There are various facets of justice that a victim needs to be accorded to  transform them to a survivor. Besides having the perpetrator charged, tried and convicted by a court of law, the psychosocial welfare of the survivor is of utmost importance since gender-based violence is a traumatising event whose ramifications could affect the survivor for life.

It is important to note that there were similar cases pending before other High Courts, such as the Narok one, where the Centre for Rights Education and Awareness (Creaw) was enjoined as an interested party. But since the Machakos court has decided on the matter, the only route to remedy the situation is for the Office of the Director of Public Prosecutions (ODPP) or the Attorney-General (AG) to appeal this decision at the Court of Appeal.

But neither the ODPP nor the AG, the respondents in the Machakos case, have appealed the judgment. As a result, various courts are now faced with an overwhelming number of applications by prisoners for resentencing. Recently, the High Court at Mombasa followed suit with a similar judgment.

Minimum sentences

The Machakos judgment revealed how mandatory minimum sentences were detrimental to persons found guilty of sexual offences where both the perpetrator and survivor are minors. These are referred to as “Romeo and Juliet”. While a valid concern, this is akin to killing a fly using a sledgehammer.

There are many perpetrators validly jailed whose cases cannot be classified under Romeo and Juliet. Resentencing would be detrimental to survivors as that would perpetrate a culture of impunity and trivialisation of women’s rights issues. Worryingly, the state agents (AG and ODPP) responsible for safeguarding the Constitution and other laws have taken a back seat on the issue.

These judgments are a slap in the face for survivors of sexual violence who have to live with the scars of the violations. It also claws back on the gains by women’s rights movements over the years to ensure gender-based violence is taken seriously.

The state should fulfil its legal obligation to appeal the High Court ruling and ensure mandatory minimum sentences for sexual offences are upheld.

Ms Odali, advocate of the High Court of Kenya, is a strategic litigation advocate at the Centre for Rights Education and Awareness (Creaw). [email protected]. @winnieodali