Machakos Judge George Odunga has declared the minimum mandatory sentence for sexual offenses as unconstitutional.
According to the judge, the court should exercise its discretion while sentencing sexual offenders.
“The extent that the Sexual Offences Act prescribe minimum mandatory sentences with no discretion to the trial court to determine the appropriate sentence to impose, falls foul of Article 28 of the Constitution.
Justice Odunga added that the circumstances of the offence must be considered, “and having done so, nothing bars the court from imposing such sentences as are appropriate to the offence committed,” the judge added.
The judge noted that the perpetrators of the said offences must be condemned by all means. However, the sentences to be imposed must meet the constitutional dictates.
In addition, the judge ruled that the court is at liberty to impose sentences prescribed thereunder. This is as long as the same are not deemed to be the mandatory minimum prescribed sentences.
Justice Odunga on those convicted
Justice Odunga directed that those who were convicted of sexual offences and whose sentences were passed on the basis that the trial courts had no discretion but to impose the said mandatory minimum sentence are at liberty to petition the High Court for orders of resentencing in appropriate cases.
The case was filed by six inmates serving time for sexual offences.
The petitioners are Philip Mueke Maingi, Nathan Khaembe Makokha, Peter Thanga Kago, Simon Nganga Thengi, Mwangangi Muthui and Joseph Kamau Wakaba.
They argued that the mandatory minimum sentences ought to be construed with such adaptation, qualifications and exceptions in order to be in line with the Constitution and the individual’s dignity.
According to the Petitioners, Sexual Offences Act ought to be amended so that judges and magistrates can be given the discretion to decide on the appropriate punishment. This, with regard to the unique circumstances of each case that is before them.