The High Court in Mombasa has declared life sentences for sexual offences unconstitutional.
Administering the verdict on Friday, Justice John Mativo said that individual cases called for individual circumstances and mitigation thus, the right to a fair trial as guaranteed in Article 50 of the Constitution was breached.
In that case, he said that convicts who had already been tried and sentenced were at liberty to petition for re-sentencing and mitigation.
“Infliction of punishment is pre-eminently a matter for the discretion of the trial court and to the extent that the provisions of sections 8(2), )3), (4), 11(1), 20(1) and 3(3) of the Sexual Offences Act take away the court’s discretion, ignoring the fact that the individualisation of punishment requires proper consideration of the individual circumstances of each accused person,” he said, according to the Standard.
He added:
“An order that persons convicted and imprisoned under the offences are at liberty to petition the High Court for mitigation and re-sentencing.”
His ruling was followed by 14 petitions which challenged the validity of the mandatory sentences as prescribed by sections 8(2), )3), (4), 11(1), 20(1) and 3(3) of the Sexual Offences Act.
The petitioners were; Edwin Wachira, Robert Maganga, Nelson Amayo Odhiambo, Samuel Mwachala Mwaghania, Charles Otieno and Fredrick Gilbert Banda, Furaha Dickson, Kafundi Masha, James Mukobo, Moses Muli Kingoo, Adan Mak Thulu, Robert Mwangi and Kazungu Kalama Jojwa.
They had argued that the mandatory sentence infringed on a fair trial guaranteed under Article 50 further adding that they had been denied the right to mitigate and get a lesser severe sentence, unlike other offenders.
The petitioners termed the sentencing as discriminatory, contrary to Article 27 of the Constitution saying the provisions of ignoring the offenders’ personal circumstances and that sentencing is a legal issue that forms part of the principle of a fair trial.
“That the mandatory nature of the sentences under the said provision jettisons the discretion of the trial court forcing it to impose sentences which are pre-determined by the legislature contrary to the doctrine of separation of powers under Article 160(1) of the constitution depriving Magistrates sentencing discretion,” submitted the petitioners.
The Director of Public Prosecution (DPP) and the Attorney General opposed the petition with the DPP noting that the petitioners’ right cannot override the victims’ right since the sentence reflects the will of the people and the sentence deters similar offenders.
“The constitution recognizes children as vulnerable and children’s rights are guaranteed under international conventions. The decisions relied upon by the petitioners did not invalidate mandatory sentences,” said the DPP.
The AG similarly stated that the rationale for the act was to protect all persons from unlawful sexual acts and preserve the integrity, security and dignity of all persons.