Litigation on Mandatory Minimum Sentencing for Sexual Offences in Kenya
The Sexual Offences Act No. 3 of 2006 Kenya acknowledges the serious nature of sexual offences by setting mandatory minimum sentences where an accused person is found guilty of a sexual offence. However, several courts including the Machakos High Court, the Mombasa High Court and the Court of Appeal at Nyeri delivered judgments in diverse cases declaring that mandatory minimum sentences for sexual offences as provided by the Sexual Offences Act are unconstitutional, and that they limit the discretion of the court to determine the appropriate sentence to mete. Consequently, various courts across Kenya are now faced with an overwhelming number of applications for resentencing by prisoners previously convicted of sexual offences. These precedents claw back on the gains made by the women rights movement over the years to ensure that gender-based violence is treated with the urgency and weight it deserves.
Various organizations and activists within the women’s rights movement engaged the Director of Public Prosecutions on the need for their office to appeal the court decisions. For example, CREAW, a partner organization in ISLA’s Feminist Litigation Network (FLN) coordinated advocacy activities with the support of ISLA. These included an opinion article in the Nation newspaper, a Twitter Space conversation in October 2022 where the Office of the Director of Public Prosecutions was part of the panel and a processional walk to the Office of the Chief Justice on 9th December 2022 to protest against the negative judgments by the courts and to demand for the Judiciary to fulfil its due diligence obligation to protect victims of sexual violence by punishing perpetrators and ensuring that victims obtain their right to effective remedy.
As a result of the concerted legal mobilization efforts, the judgment arising from the Court of Appeal in Nyeri in the case of Republic v Joshua Gichuki Mwangi has been appealed by the Director of Public Prosecutions and is currently before the Supreme Court. ISLA, Kenya Legal & Ethical Issues Network on HIV and AIDS (KELIN), Federation of Women Lawyers (FIDA-Kenya) and Women’s Link Worldwide (WLW) filed an application seeking to be admitted as joint amici curiae on 25 August 2023. The Waging Justice for Women (WJW) fellow based at ISLA also contributed to the drafting of the amicus brief. The joint amicus brief that has been filed together with the application for joinder seeks to guide the court on the pervasiveness of violence against women which is a form of discrimination, the state due diligence obligation to punish perpetrators of sexual violence, the necessity of mandatory minimum sentences for sexual offences, the deficiencies in courts’ sentencing of sexual offences where they are not guided by or they deviate from mandatory minimum sentences and comparative lessons from other jurisdictions. This matter came up for mention on 28 August 2023 and 11 September 2023. The court ordered that the application be taken before the Chief Justice for constitution of a bench to hear and determine whether to admit ISLA, KELIN, FIDA-Kenya and Women’s Link Worldwide as joint amici curiae in the matter. The ruling will be delivered on notice.
For more information or enquiries contact:
Winfred Odali
ISLA Junior Feminist Lawyer
Email: winfred@the-isla.org