Litigation on Mandatory or Minimum Sentencing for Sexual Offences in Kenya
Case Name: Petition No. E018 of 2023 – Republic v Joshua Gichuki Mwangi
Court: Supreme Court, Kenya
According to international laws and standards, violence against women is discrimination because it happens to women because of their gender or it disproportionately affects women. In 2021, 92% of the sexual and gender-based violence cases reported to the police were reported by women and girls. Justice systems as well as policy responses should consider the varying and intersecting forms of discrimination faced by women, and to ensure that gendered stereotypes, rape myths and gender biases do not lead to miscarriage of justice and re-victimization of victims.
On 12 July 2024, the Supreme Court of the Republic of Kenya (Koome CJ&P, Ibrahim, Wanjala, Njoki & Lenaola SCJJ) delivered its judgment in Republic v Joshua Gichuki Mwangi 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 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. The Initiative for Strategic Litigation in Africa (ISLA) was appearing 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 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.
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.
The Supreme Court also distinguished between mandatory sentences and minimum sentences, where mandatory sentences leave no discretion for the judge to individualize punishment whereas minimum sentences set the floor rather than the ceiling. It held that although the term ‘mandatory minimum’ has been used in other jurisdictions, it is not applicable as a legally recognized term in Kenya. A mandatory sentence and minimum sentence can neither be used interchangeably nor in similar circumstances as they refer to two very different sets of meanings and circumstances.
The Executive Director for KELIN, Allan Maleche, has welcomed the judgment by the Supreme Court as it now provides certainty to victims of sexual offences regarding the punishment to be meted out to perpetrators. “By upholding the constitutionality of the mandatory minimum sentencing for sexual offences, the court has recognised the arguments of the amici, particularly on the history of sentencing of sexual offences, and the need for victims to get a remedy by punishing perpetrators,” Allan stated.
Agnes Rogo, the Managing Attorney – East Africa for Women’s Link Worldwide commended the Supreme Court of Kenya for its judgment on minimum mandatory sentences for sexual offences. “Upholding these sentences is vital to ensuring justice and accountability for survivors. We advocate for a survivor-centered approach to justice, where the dignity and rights of survivors are prioritized. This judgment reinforces the importance of stringent penalties in deterring sexual offences and provides a strong framework for protecting and supporting survivors throughout the judicial process. We are glad to see the court agree that sterner sentences ensure that prejudicial myths and stereotypes no longer culminate in lenient sentences that do not reflect the gravity of sexual offences. We remain committed to working towards a legal system that places survivors at the forefront and upholds their rights with the utmost seriousness,” she said.
”This is a landmark decision by the apex court in Kenya that is momentous and progressive in the protection of victims of sexual offences in Kenya,” said Anne W. Ireri, the Executive Director for FIDA-Kenya. “The impact of the Sexual Offences Act, 2006 has been the minimum mandatory sentencing as a deterrence to perpetrators while offering survivors a sense of justice. Any reversal to this judicial discretion in sentencing would water down the decades of hard work that has gone towards achieving justice and protection for survivors of SGBV- this would be catastrophic.’
ISLA’s Associate Lawyer, Winfred Odali, was the counsel on record for the joint amici curiae.
Ends.
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For further enquiries kindly contact:
Winfred Odali
ISLA Associate Lawyer
