This month, the Court of Appeal declared the mandatory nature of life imprisonment under the Sexual Offences Act unconstitutional. A sentence is said to be mandatory when a judge is obliged by law to mete it out upon conviction, regardless of the peculiar circumstances.
This, Justices George Odunga, Jessie Lessit and Pauline Nyamweya found, is an affront to judicial independence, as it takes away the court’s sentencing discretion by imposing a penalty predetermined by Parliament. The judges also found it discriminatory that convicts of lesser offences are allowed to mitigate their sentences. To this extent, the court was on solid legal ground and should have stopped there.
