Kenya High Court Declares Mandatory Minimum Sentence for Sexual Offenders Unconstitutional

The High Court has declared the mandatory minimum sentence in the Sexual Offences Act unconstitutional.

In a ruling on Tuesday, Justice George Odunga said the court should be allowed to exercise its discretion while sentencing those convicted of sexual offences and not impose the mandatory minimum sentence.

“The perpetrators of the said offences must be condemned by all means. However, the sentences to be imposed must meet the constitutional dictates,” Justice Odunga said.

Justice Odunga made the ruling in a case filed by six convicts serving sentences under the Sexual Offences Acts. The petitioners included Philip Mueke Maingi, Nathan Khaembe Makokha, Peter Thanga Kago, Simon Nganga Thengi, Mwangangi Muthui, and Joseph Kamau Wakaba.

The six petitioners argued that mandatory minimum sentences are unjust and unfair as the discretion of the judges and magistrates has been taken away.

They averred that the Sexual Offences Act should be amended to give judges and magistrates the discretion to decide on the appropriate punishment with regard to the unique circumstances of each case before them.

Justice Odunga agreed with the petitioners, noting that courts are at liberty to impose sentences prescribed thereunder so long as the same is not deemed to be the mandatory minimum prescribed sentences.

The judge said sexual offenders who were previously sentenced based on the mandatory minimum sentence are at liberty to petition the High Court for orders of resentencing.

The Sexual Offences Act, 2006 states that a person who commits an offence of defilement with a child aged 11 years or less shall upon conviction be sentenced to imprisonment for life.