Litigation on Mandatory Minimum Sentencing for Sexual Offences in Kenya
Case Name: Petition E018 of 2023 – Republic v Joshua Gichuki Mwangi
Court: Supreme Court, Kenya
Courts have a duty to punish perpetrators of crime. This includes making decisions on the appropriate sentence having been appraised of the facts and the law. There are instances where the legislature had to intervene by providing judicial guidelines and mandatory sentences when the courts have struggled to view the seriousness of certain offences. Sexual offences are a category of such offences where courts have routinely struggled to give appropriate sentences to perpetrators. This constitutional challenge to mandatory minimum sentencing laws does not pay attention to the different reasons that necessitate mandatory sentencing.
On 13 March 2024, the Initiative for Strategic Litigation in Africa (ISLA) will appear before the Supreme Court of Kenya together with the Kenya Legal & Ethical Issues Network on HIV and AIDS (KELIN), the Federation of Women Lawyers (FIDA-Kenya) and Women’s Link Worldwide (WLW) as joint amici curiae in the hearing of Republic v Joshua Gichuki Mwangi. The Director of Public Prosecutions appealed this case to the Supreme Court of Kenya from the Court of Appeal in Nyeri as a matter of general public interest. The appeal seeks to challenge the decision of the Court of Appeal declaring that mandatory minimum sentences are unconstitutional since they limit judicial discretion.
The amicus brief filed by ISLA, KELIN, FIDA-Kenya and WLW on 25 August 2023 seeks to surface violence against women as a form of discrimination and to highlight the state due diligence obligation to punish perpetrators of sexual violence against women, the necessity of mandatory minimum sentences for sexual offences, the deficiencies of court decisions where they were not guided by or where they deviated from mandatory minimum sentences and comparative studies from other jurisdictions on mandatory minimum sentences for sexual offences. Our intervention aims to surface the gender dimension of the mandatory minimum sentencing law and asks the courts to consider this when making a decision on the constitutionality of the law.
The matter will be heard virtually. ISLA’s Associate Lawyer, Winfred Odali, is the counsel on record for the joint amici curiae.
Ends.
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For further enquiries kindly contact:
Winfred Odali
ISLA Associate Lawyer
