Kenya's Supreme Court Considers Punishment for Sex Offenders

The Kenyan Supreme Court is navigating a complex case concerning the sentencing of sex offenders.

The central question revolves around the constitutionality and efficacy of mandatory minimum sentences stipulated in the Sexual Offences Act. On one hand, the Director of Public Prosecution Renson Ingonga advocates upholding the Act. He argues that mandatory sentences are constitutional and essential to deter repeat offences and deliver justice for victims. Several prominent organizations, aligned with this perspective, emphasize the need for strong deterrents and a victim-centred approach.

Opposing this view is Joshua Gichuki, the defendant in this landmark case. Gichuki along with his lawyer Wahome Gikonyo contends that the mandatory sentences violate the principle of judicial discretion. They argue that fixed sentences strip judges of the ability to consider mitigating factors within each case, potentially infringing on the constitutional rights of the accused. Gikonyo emphasizes the importance of judicial officers retaining the authority to tailor sentences based on individual circumstances.

Further complicating the issue is the gendered nature of sexual offences as highlighted by lawyer Winfred Odali representing the amici curiae. Odali accentuates the overwhelming number of female victims and argues against weakening the Act's sentencing provisions. The Supreme Court now faces the critical task of weighing these competing perspectives. They must determine a course of action that ensures both justice for victims of sexual violence and the upholding of constitutional rights for the accused.

The Sexual Offences Act stipulates that an individual who commits a sexual assault against a minor aged 12 to 15 will be sentenced to a minimum of 20 years in jail. Engaging in sexual activity with minors aged 16 to 18 will result in a minimum sentence of 15 years. Those who sexually assault children under the age of 11 will face a life sentence. The Chief Justice has affirmed that the court will announce its judgment later.

In the past two years, there has been a debate within the judicial system regarding the constitutionality of mandatory minimum sentences (MMS) outlined in the Sexual Offences Act. In 2022, the High Court ruled, based on the well-known Muruatetu case, that MMS are indeed unconstitutional. The Muruatetu case focused on life sentences for murder.