BY SAM ALFAN.
Director of Public Prosecution has signaled intention to challenge a recent decision that declared minimum mandatory sentences under the Sexual Offences Act unconstitutional.
Through Senior Principal Prosecution counsel Duncan Ondimu, DPP wants the appellate to allow him move to the Supreme Court to challenge the decision rendered by the appellate court in Nyeri.
The DPP wants the apex court to quash the entire decision delivered on October 7.
“This court do issue an order staying the implementation of court of appeal decision that minimum mandatory sentence under Sexual Offences Act are unconstitutional until hearing and determination and or until the legislative arm of government reviews the various provisions of the Act,” urges DPP.
The DPP says it is public interest for the case to be certified urgent given the high prevalence of sexual offences reported countrywide and currently pending or have been adjudicated.
Ondimu says there were an estimated 15,496 cases in 2021 to 2022, an indication of how the matter affects the society.
Prosecution further seeks the court to declare that the imposition of mandatory minimum sentence under Sexual Offences Act is constitutionally valid and in compliance with Articles 27, 28 and 50(2) (p) of the constitution 2010.
The DPP says the appellate court judges were wrong in their interpretation and application of Article 159(2) (a) and (b) and 160 of the constitution and holding that the imposition of mandatory minimum sentence under Sexual Offences Act is unconstitutional to the extent that it contravenes and violates judicial independent and fetters court’s discretion and conflicts with principals of separation of powers.
“This court should determine whether the judges misapprehended and gravely misconstrued the constitution on interpretation and application of Article 25 and 50 of the constitution by holding that the imposition of the mandatory minimum sentence under Sexual Offences Act is unconstitutional to the extent that it contravenes and violate an accused persons rights to a fair trial,” he said.
The Chief Prosecutor further said the court erred in arriving at the conclusion that the imposition of the minimum mandatory sentence is unconstitutional and failed to consider the rights of victims of sexual offences and violence and their rights to equal protection of the law under Article 27 and their right to access justice under Article 48 of the constitution.
He also wants the court to determine whether the bench sitting in Nyeri in arriving at their decision, took into the account matters which they ought not to have and failed to take into account matters which they should have.
Ondimu says the decision by the appellate court has resulted in further violation of the of the victims right to access to justice.
He adds that the trial court are in the process of reviewing sentences taking into account the decision of the court of appeal which has led to chaos, confusion and uncertainty in the determination of sexual offences through inconsistent sentences ranging from non-custodial sentences to probationary sentences for grave offences.
According to the prosecutor, orders by the appellate court have serious irreversible implications as persons already serving sentences under Sexual Offences Act are at liberty and has begun to petition various courts for fresh sentences.
