BY SAM ALFAN.
The High Court has declared the minimum mandatory sentences imposed under Sexual offences Act as unconstitutional.
Justice George Odunga ruled that whereas the sentences prescribed under the Act are not unconstitutional, the imposition of the minimum mandatory sentences does not meet the constitutional threshold particularly section 28 of the Constitution.
The judge said the minimum mandatory sentences takes away the discretion of the trial court and the power to mete appropriate sentences, in what he termed as a judicial coup.
“The perpetrators of the said offences must be condemned by all means. However, the sentences to be imposed must meet the constitutional dictates,” the judge said.
Justice Odunga said convicts whose sentences were passed on the basis that the trial courts had no discretion but to impose the said mandatory minimum sentence are at liberty to petition the High Court for resentencing in appropriate cases.
The judge said courts are at liberty to impose sentences prescribed under the Act so long as the same are not deemed to be the mandatory minimum prescribed sentences.
“The fact that a trial court may err in imposition of sentences ought not to be a reason for taking away judicial discretion and handing it over to the legislature. The judicial system provides for appellate processes where parties are dissatisfied with decisions of the lower court,” he said.
Justice Odunga said since the provisions of the Sexual Offences Act came into force earlier than the Constitution, the prima facie mandatory sentences must now be construed with the said adaptations, qualifications and exceptions when it comes to the mandatory minimum sentences and particularly where the said sentences do not take into account the dignity of the individuals.
Six convicts under the sponsorship of Justice Defenders, a Non-governmental organization that offers sponsorship to prisoners to study law so that they can help their indigent colleagues in drafting of appeals, had sought to quash the mandatory minimum sentences imposed by the Act.
According to the petitioners, Sexual Offences Act ought to be amended so that judges and magistrates can be given the discretion to decide on the appropriate punishment with regard to the unique circumstances of each case.
They argued some sentences imposed so far are not compatible with the promotion of human dignity and the overall goal of Justice which should be restorative.
Director of Public Prosecutions (DPP) and the Attorney General had opposed the case arguing that sentences to be passed if one found guilty under the Act are determined by the age of the victim at a 100 percent basis, and courts cannot, therefore, vary this sentence depending on the surrounding circumstances under which the offence was committed.
The DPP submitted that the mandatory minimum sentences as set out in the Act are constitutional, necessary, reasonable and justifiable.
