Haji seeks Supreme Court’s intervention on Sexual Offences Act judgment
Director of Public Prosecutions, Noordin Haji.
Director of Public Prosecutions Noordin Haji wants to move to the Supreme Court to challenge the Court of Appeal's judgment that declared illegal mandatory imprisonment sentences imposed on sexual offenders.
The DPP, in his court filings, says the judgment had caused chaos and confusion in trial courts and has irreversible implications on victims of sexual violence.
"The orders issued by the Court of Appeal are bound to have serious irreversible implications as persons already serving sentences under the Sexual Offences Act are at liberty, and indeed have begun, to petition various courts for fresh sentence hearing regardless of the gravity of their offences," says the DPP through principal prosecution counsel Duncan Ondimu.
Mr Haji has lodged a notice of appeal.
The case stemmed from the trial of a prisoner, Joshua Gichuki Mwangi, The DPP wants the Court of Appeal to grant him authority to escalate the case to the apex court for interpretation of the provisions of the law.
The DPP argues that the intended appeal is a matter of general public importance because of the significant implications caused by the judgment dated October 7, 2022.
"The trial courts are in the process of reviewing sentences (of sexual offenders in prison) taking into account the decision of the Court of Appeal which has led to chaos, confusion and uncertainty in the determination of sexual offences cases through inconsistent sentences ranging from non-custodial sentences to probatory sentences for grave offences," Mr Ondimu says.
He says the DPP is aggrieved and dissatisfied by the appellate court's finding that the sentences imposed in the Sexual Offences Act are unconstitutional for directing the Judiciary on what punishment to mete out to an offender.
A three-judge bench comprising justices Wanjiru Karanja, Patrick Kiage and Jamilla Mohammed held that Parliament, in stipulating the mandatory sentences, usurped the judicial function of the courts to decide the appropriate penalty/punishment of a sexual offender depending on the circumstances of each case.
The implication of the landmark judgment is that it gave Magistrate Courts a free hand to pass any punishment they deem appropriate other than those prescribed in the law.
The Court of Appeal held that the mandatory nature of the sentences imposed by the law deny courts the discretion and independence of issuing proportionate sentences that each offender deserves based on the circumstances of each offence.
Since offences occur under diverse circumstances, the court held that it is unfair to compel courts to condemn the offenders to a general punishment yet some accused persons deserve no less than the minimum sentences provided for in the law due to the nature of the crimes committed.
"This (sentencing) being a judicial function, it is impermissible for the Legislature to eliminate judicial discretion and seek to compel judges to mete out sentences that in some instances may be grossly disproportionate to what would otherwise be an appropriate sentence," the court said.
"This goes against the independence of the Judiciary as enshrined in Article 160 of the Constitution. Further, the Judiciary has a mandate under Article 159 (2) (a) and (e) of the Constitution to exercise judicial authority in a manner that justice shall be done to all and to protect the purpose and principles of the Constitution."
But the prosecutor says the effect of the Court of Appeal judgment has violated the principle of separation of powers as espoused under the Constitution.
He adds that the judgment has resulted in a further violation of the fundamental rights and freedoms of victims. He cites the rights to access justice, equal protection of the law and the right to dignity.
"This court should take judicial notice of the high prevalence of sexual offences reported countrywide and currently pending or have been adjudicated estimated to be 15,496 for the financial year 2021/2022 demonstrating that it is a matter affecting the society as a whole," says Mr Ondimu.
He wants the court to suspend the implementation of its judgment that the minimum mandatory sentences under the Sexual Offences Act are unconstitutional until the hearing and determination of the appeal or until Parliament reviews the various provisions of the Act.
Mr Ondimu says the intended appeal to the Supreme Court is not only a matter of general public importance but also involves the interpretation and application of the Constitution.
Pending the hearing and determination of the application, he also wants the court to order the subordinate courts to apply the law as prescribed in the Sexual Offences Act and that that they should stop applying the Court of Appeal’s decision to the effect that mandatory sentences under the Act are unconstitutional.
"The orders made (in the judgment) have a significant bearing on the administration of justice as they touch on the rights of victims of sexual violence, the duty of the State to punish perpetrators of sexual violence as well as the rights of accused persons," states Mr Ondimu.
"Therefore, it has a significant bearing on public interest and involves the interpretation and application of constitutional provisions in determining the constitutionality of the provisions of sections 8(2), (3), (4), 11(1) and 20(1) of the Sexual Offences Act."
Being aggrieved and dissatisfied with the judgment and order of the Court of Appeal, he says the DPP had filed a notice of appeal dated October 7, 2022.
"The DPP and victims of sexual offences in Kenya stand to suffer further prejudice and injustice should the orders sought not be granted," says Mr Ondimu.
In the disputed judgment, the appellate judges held that courts have a duty to dispense justice not only to the complainants but also to accused persons.
"The imposition of mandatory sentences by the Legislature conflicts with the principle of separation of powers, in view of the fact that the Legislature cannot arrogate itself the power to determine what constitutes appropriate sentences for specific cases yet it does not adjudicate particular cases,” the court said.
“Hence, it cannot appreciate the intricacies faced by judges in their mandate to dispense justice."
It held that "circumstances and facts of cases are as diverse as the various cases and merely charging them under a particular provision of laws does not homogenise them and justify a general sentence".
During the hearing of the case in the appellate court, the prosecution had argued that sentencing is a crucial aspect of the criminal justice system and one of its aims is to protect the society from the harmful acts of criminal defendants.
Mr Ondimu said sentencing also serves as a prohibition to the accused from repeating the crime and also as a deterrent for others.
"Defilement is a particularly serious crime, one which continues to afflict our society; hence the Act states its purpose in part as to protect all persons from harm from unlawful sexual acts is a clear indicator of the intention of the legislature to prescribe punitive measures to deter such heinous acts from plaguing our society," he said.
He added that the logic behind mandatory minimum sentences is to set a baseline sentence for perpetrators of particular offences.
Given that the Legislature acknowledged the seriousness and prevalence of sexual offences in Kenya and passed the Act in order to curb it, he said the Judiciary should not disregard that function of the Legislature in the name of discretion.
The prosecutor argued that minimum sentences as provided for in the Act do not take away judicial discretion. To the contrary, he said unlimited judicial discretion may lead to judicial tyranny and legislation from the courts without due process.
