Summary Judgment on Constitutionality of Mandatory or Minimum Sentencing for Sexual Offences by the Supreme Court of Kenya
Summary Judgment on Constitutionality of Mandatory or Minimum Sentencing for Sexual Offences by the Supreme Court of Kenya
For Immediate Release
23 October 2024
Case Name: Petition No. E018 of 2023 – Republic v Joshua Gichuki Mwangi
Court: Supreme Court, Kenya
Facts of the Case
On 11th March 2011, the Respondent, Joshua Gichuki Mwangi, was arraigned before the Senior Principal Magistrate’s Court in Karatina and charged with the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act. The particulars of the charge were that on 8th March 2011, at Ngorano Location in Mathira West District within the then Central Province, the Respondent intentionally caused his penis to penetrate the vagina of JWM, a child aged 15 years. The court found him guilty and sentenced him to 20 years imprisonment.
The conviction and sentence were upheld on first appeal at the High Court but the sentence was later overturned by the Court of Appeal which set aside the 20-year sentence and substituted it with a 15-year sentence running from the time that the trial court imposed the sentence. The Court of Appeal further relied on the Muruatetu decision to find that the statutory sentences for sexual offences are unconstitutional since they limit judicial discretion.
The Case before the Supreme Court
The Director of Public Prosecutions appealed this decision to the Supreme Court as a matter of general public interest. The Initiative for Strategic Litigation in Africa (ISLA), Kenya Legal & Ethical Issues Network on HIV and AIDS (KELIN), Federation of Women Lawyers (FIDA-Kenya) and Women’s Link Worldwide (WLW) were admitted as joint amici curiae on 10 November 2023.
The judgement
On 12 July 2024, the Supreme Court of the Republic of Kenya (Koome CJ&P, Ibrahim, Wanjala, Njoki & Lenaola SCJJ) delivered its judgment where it allowed the petition of appeal to the extent of setting aside the judgment by the Court of Appeal in Nyeri in which it declared [mandatory] minimum sentences (as they were then referred) for sexual offences unconstitutional in that they limit the discretion of the court. The Supreme Court also ordered that the Respondent should complete his 20-year sentence from the date of imposition by the trial court.
- Gravity of Sexual Offences
In the judgment, the Supreme Court reiterated that its decision in the Muruatetu case did not invalidate mandatory sentences or minimum sentences in the Penal Code, the Sexual Offences Act, or any other statute. The court agreed with the submissions of the amici curiae that sterner sentences ensure that prejudicial myths and stereotypes no longer culminate in lenient sentences that do not reflect the gravity of sexual offences. The court went ahead to cite the amici’s submissions on instances where courts have been influenced by myths, including that: attempted rape is not a serious offence; the absence of separate physical injury renders the crime less serious; and the alleged relationship between the perpetrator and the victim diminishes the perpetrator’s culpability. The court proceeded to highlight the comparative lessons from different jurisdictions as submitted by the amicus.
- Sentencing in Sexual Offences are Constitutional
In addition, the Supreme Court faulted the Court of Appeal for its declaration of [mandatory] minimum sentences unconstitutional since that was not an issue that had been raised by any of the parties before court and it was therefore a violation of the principle of stare decisis. The Court of Appeal also failed to identify with precision the provisions of the Sexual Offences Act it was declaring unconstitutional, thereby leaving the declaration ambiguous, vague, and bereft of specificity. Further, the Supreme Court held that although sentencing is an exercise of judicial discretion, it is Parliament and not the Judiciary that sets the parameters of sentencing for each crime in statute.
Impact of the Judgement for Victims of Sexual Violence
This judgement recognizes the importance of the judicial processes including sentencing for victims of sexual violence as a limb of their right to access to justice. The Court in its judgement highlights the need for certainty in sentencing as essential for restoring the public’s trust in the justice system. In conclusion, this judgment ensures that Courts must consider and center the victims in their analysis of the cases before them and the sentencing of perpetrators of sexual violence.
Ends.
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For further enquiries kindly contact:
Winfred Odali
ISLA Associate Lawyer