Mandatory Minimum Sentencing for Sexual Offences – September 2022
For Immediate Release
Litigation on Mandatory Minimum Sentencing for Sexual Offences in Kenya
The Sexual Offences Act was enacted in 2007 to make provisions about sexual offences, their definition, prevention and the protection of all persons from harm from unlawful sexual acts. The Act acknowledged the serious nature of sexual offences by setting mandatory minimum sentences where an accused person is found guilty of a particular offence.
However, on 17th May 2022, Hon. Justice Odunga of the Machakos High Court ruled that the mandatory minimum sentences provided by the Sexual Offences Act for sexual offences are unconstitutional and that they limit the discretion of the court to determine the appropriate sentence to impose. Consequently, various courts across Kenya are now faced with an overwhelming number of applications for resentencing by prisoners previously convicted of sexual offences. This precedent claws back on the gains made by women rights movements over the years to ensure that gender-based violence is treated with the urgency and weight it deserves.
To date, the Machakos High Court judgment has not been appealed by either the Attorney General or the Office of the Director of Public Prosecutions and as it stands it is binding on all courts of similar or lower jurisdiction. It is important to note that there were similar cases pending before other High Courts in Kenya such as the Narok High Court where the Centre for Rights Education and Awareness (CREAW) was enjoined as an interested party. However, they are now bound by the judgment of the Machakos High Court. More recently, the High Court of Kenya at Mombasa has followed suit with a similar judgment.
The Attorney General and Director of Public Prosecutions, who were the only Respondents in the Machakos High Court petition, are responsible for safeguarding and defending the Constitution of Kenya and other statutory laws. They have a due diligence obligation to ensure that victims of sexual violence enjoy their rights to equality and non-discrimination, dignity and effective remedy. Where sexual offences are trivialized, victims are denied their right to an effective remedy while they continue living with the aftermath of the violations.
The Initiative for Strategic Litigation in Africa (ISLA) established the Feminist Litigation Network (FLN) which aims at developing a pool of African feminist strategic litigators. ISLA achieves this by investing in partner organisations and a raft of capacity-strengthening activities such as the strategic litigation institute. ISLA is working closely with its network partners, the Centre for Rights Education and Awareness (CREAW) and FIDA-Kenya who have also partnered with other women’s rights organisations including Equality Now to ensure that the State is held accountable for their failure to fulfil their due diligence obligations to prevent gender-based violence, protect survivors, investigate violence, prosecute and punish perpetrators and ensure that survivors obtain effective remedy.
This is a call to the State to fulfil its legal obligation to appeal the decision of the High Court and to make efforts towards ensuring that mandatory minimum sentences for sexual offences are upheld by our courts.
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For further enquiries kindly contact:
ISLA Acting Litigation Director
CREAW Strategic Litigation Advocate