The High Court has ruled that some provisions of the Sexual Offences Act that provide for the mandatory minimum sentences are discriminatory and violate the accused's rights under Article 27 of the Constitution.
In a landmark decision that will change how sex offenders are sentenced in the country, the court further ordered that persons convicted and imprisoned under the provisions of the Act are free to petition it (High Court) for mitigation and re-sentencing.
Convicts who were charged, tried and convicted of the offences under the provisions of the Act and sentenced to life imprisonment or the mandatory minimum sentences had separately filed petitions challenging the provisions before they (petitions) were consolidated and heard together.
Justice John Mativo further issued a declaration that sentencing remains a discretionary power exercisable by the court and involves the deliberation of the appropriate sentence.
He added that to the extent that the provisions of sections 8(2), (3), (4), 11 (1), 20 (1) and 3(3) of the Act deprive the court discretion to determine the appropriate punishment taking into account individual circumstances of each case, they (provisions) offend the notion of a fair trial contemplated under Article 50(1) of the constitution.
Justice Mativo also issued a declaration that to the extent that a citizen in a given case of the mandatory or minimum sentence has a right to mitigate to show that imposition of the mandatory minimum sentence is not warranted in his case, then sections 8(2), (3), (4), 11 (1), 20 (1) and 3(3) of the Act deprive him the right to mitigate which is a core component of a fair trial.
He ruled that taking away judicial discretion and the fact that mandatory minimum sentences deprive the court of the choice to prescribe a sentence taking into account the individual circumstances of the accused is unfair and it impedes the right to a fair trial.
“Sentencing is an integral part of a judicial function and an important element of a fair trial process, similarly, the provisions under challenge deprive the accused the benefit of a lesser sentence informed by the circumstances of each offence,” said Justice Mativo.
Justice Mativo noted that unlike in other offences, mandatory minimum sentences are discriminatory because they deprive the accused of the full benefit of the law contrary to the constitution.
The judge was quick to add that a mandatory minimum sentence is not unconstitutional per see and that Parliament in the exercise of its legislative powers is entitled to indicate the type of sentence which would fit the offence it creates.
“It has never been suggested that the sphere of judicial power is invaded when Parliament provides for a maximum or minimum penalty for offences which are duly proved in courts of law,” said Justice Mativo.
However, he said that what is decried is the absence of judicial discretion to determine an appropriate sentence taking into account the individual circumstances of an accused, depriving the right to be heard in mitigation and depriving the court of the discretion to determine an appropriate sentence.
He further said that sentence discretion is a vital element of the law of sentencing and at the heart of it is the principle that each case should be treated on its facts thus discretion lies with the trial court.
“Sadly, a review of sentences imposed by the courts since the enactment of the Sexual Offences Act discloses massive and worrying inconsistencies which border on injustice because of the peculiar circumstances of the case are ignored,” said Justice Mativo.
Justice Mativo also noted that the court’s advantage centres on the fact that they try individual cases and can make sentencing decisions based on particular facts of each case as they possess information about a particular accused.
“Judges and magistrates should be granted an unfettered discretion to impose sentences in cases presented to them. This is because the sentencing discretion can only be properly exercised based on all the facts relevant to the matter,” said Justice Mativo.
The petitioners argued that the mandatory sentences impinge on a fair trial guaranteed under the constitution.
They also argued that they are prejudiced by being deprived of the right to mitigation and a lesser severe sentence (unlike other offenders) which amounts to discrimination contrary to the constitution.
The petitioners also argued that the provisions of the Act ignore the offenders’ circumstances and that sentencing is a legal issue which forms part of the principles of a fair trial.
The Director of Public Prosecutions (DPP) opposed the petitions saying that they lacked specificity and that the petitioner’s rights cannot override those of the victims.
The DPP also argued that the mandatory sentences reflect the will of the people that they deter similar offenders and that judicial discretion should be bridled.
He also argued that the constitution recognises children as vulnerable whose rights are guaranteed under international conventions.
On his part, the Attorney General told the court that the rationale for the Act was to protect people from unlawful sexual acts and to preserve their integrity, security and dignity.
He argued that the provisions of the Act were intended to protect the best interests of the child, incapacitate the offender as a measure of protecting the victim and deter would-be offenders.
