The Sexual Offences Act, No.3 of 2006 was enacted to remedy the shortcomings of the now repealed sections of the Penal Code and which were seen to be too lenient to sexual offenders upon sentencing.
Additionally, the Act introduced mandatory minimum sentences for sexual offences in a bid to reduce the incidences of sexual assault in Kenya.
General deterrence theory assumes that increasing the risk or the perception of apprehension and punishment deters society from committing crime.
- What are mandatory minimum sentences?
Mandatory minimum sentences are compulsory sentences prescribed by law meted out for certain crimes and they set out minimum jail term an offender has to serve in prison once they are found guilty of committing the crime, the sentence is prescribed for by law.
Minimum mandatory sentences do not permit the court to consider the peculiar circumstances of the case in order to arrive at an appropriate sentence informed by those circumstances as the court is deprived of the discretion to consider whether a lesser punishment than the minimum prescribed, would be more appropriate in the instant circumstances.
- Why mandatory minimum sentences?
The aim of punishment is to ensure that there is social order, by ensuring that offenders pay for their crimes and prospective offenders are deterred from committing crimes.
Mandatory minimum sentences embody the aim of payback, which is the underlying principle of retribution. They punish crimes committed, by prescribing a uniform sentence for similar crimes. In any justice system, uniformity and certainty are fundamental; without them justice would not be seen to be done. The Attorney General, who was the second Respondent in this case relied on Lowenthal G (1993) Mandatory sentencing laws; Undermining the effectiveness of determinate sentencing reform. (California Law Reform 81,61-123) and submitted that in bid to address the unwarranted disparities in sentencing, the Sexual Offences Act set out minimum sentences.
Retribution theory is based on the theory that punishment must fit the crime and that a moral consideration that could substitute punishment of an offender cannot be included; that the guilty deserve to be punished.
Immanuel Kant, the German Philosopher, supports that guilt should be enough justification for justice. That a human being is a free being and if his actions interfere with the rights of other human beings then he gives up his own right which justifies the interference of his right by other people.
- Efficacy of Mandatory Minimum Sentences
The objective of the guidelines is to guide the court in the exercise of its jurisdiction through a standard framework. With this, sentencing is aimed to be done in a transparent and objective manner which makes it easy for the purposes of accountability
However, the instant case presents yet another discussion on whether the sustenance of hefty mandatory-minimum sentences under the Sexual Offences Act are inconsistent with and or go against the letter and spirit of our Constitution and/or further fetter the discretion of judges and magistrates in meting out sentences.
- The Unconstitutionality of the Sexual Offences Act
While appreciating that courts do not sit as a legislative arm of government and rewrite the law on sexual offences in Kenya, the courts are implored to breathe life into the sentencing framework in the impugned sections of the Sexual Offences Actpurposively in tandem with the spirit and letter of the 2010 Constitution generally, and article 50 (2) (q) therein specifically by allowing review of sentences under the impugned Act.
A case in point is when youthful indiscretions of adolescents are visited upon the boy grave penalties within the country’s criminal justice system brought to you by the Sexual Offences Act. The unfair consequences of a skewed application of that statute predominantly against the male adolescent is quite apparent: two youths caught engaging in intercourse receive diametrically opposite treatment. The girl is branded a victim and guided to turn against her youthful paramour while the boy, Juliet’s Romeo, is branded the villain, hauled before the courts and visited with a lengthy jail term.
There is a constitutional vacuum and inadequacy in the Sexual Offences Act. Articles 25 (c), 27(1), 28, 29 and 50 of the Constitution of Kenya guarantees every citizen the rights to fair trial, equal protection of the law, human dignity, freedom and security of person, and the right to fair hearing. We are all alive to the fact that the Sexual Offences Act was enacted long before the enactment of the Constitution of Kenya, 2010 to remedy some sections in the Penal Code which apparently were not harsh enough for sexual offenders hence promoting the vice.
The overall objective of punishment is not only ensuring deterrence but also to accord the reformation and rehabilitation of the offender while observing their constitutionally guaranteed right to equality of treatment and dignity. The Sexual Offences Act by prescribing a minimum-maximum sentencing provisions offends Articles 27, 28, and 29 of the Constitution as it fetters the discretion of judges in imposing alternative sentences or order. This, predominantly has resulted in teeming up large number of prisoners who are serving various minimum-maximum sentences under the Act. The mandatory-minimum sentences ought to be construed with such adaptation, qualifications and exceptions in order to be in line with the Constitutionand the individual’s dignity.
Failing to allow a Judge discretion to take into consideration the convicts’ mitigating circumstances, the diverse character of the convicts, and the circumstances of the crime, but instead subjecting them to the same (mandatory) sentence thereby treating them as an undifferentiated mass, and subjecting them to the sentence wholly disproportionate to the accused’s criminal culpability, violates their right to dignity.
It is imperative to note that sentencing is a matter for the discretion of the trial court. The discretion must however, be exercised judicially. The trial court must be guided by evidence and sound legal principle. It must consider all relevant factors and exclude all extraneous or irrelevant factors.
To sum it all up, it is our assertion, and we fully associate ourselves with the thoughts of the Honorable Judge Odunga, we very much doubt that it conduces to good sense, policy and our own conceptions of justice and fairness that the law should be deployed in a manner so disparate and discriminative in effect.
A supposed justice resting on the shaky foundation of injustice against its own citizens hardly warrants the term. A move from this stringent adherence of unpalatable laws is the way to go in Kenya’s jurisprudence.
By Mwanga M. & Kate O.
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