Kenya High Court Orders Retrial of All Sexual Offenders

The High Court has ordered the retrial of all defilement offenders in the country, arguing that the mandatory minimum sentences on sexual offences impinge on a fair trial guaranteed under Article 50 of the Constitution.

While making the ruling on Friday, Mombasa High Court judge John Mativo said offenders convicted and imprisoned under the said offenses are at liberty to petition the High Court for orders of resentencing.

“Having considered the issues raised in this petition, the orders that commend themselves to me and which I hereby grant are as follows, to 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, such sentences fall foul of Article 28 of the Constitution,” the judge ruled.

“However, the courts are at liberty to impose sentences prescribed thereunder so long as the same is not deemed to be the mandatory minimum prescribed sentences. l, therefore, order for the retrial of all the suspects convicted under the sexual offences Acts,”

The judge stated that the mandatory sentence prejudiced defilement suspects by depriving them of the right to mitigation and the right to a lesser severe sentence (unlike other offenders) which amounts to discrimination contrary to Article 27 of the Constitution.

He added that the mandatory nature of the sentences under the said provisions jettisons the discretion of the trial court, forcing it to impose sentences which are pre-determined by the legislature contrary to the doctrine of separation of powers under Article 160 (1) of the Constitution.

“A declaration be and is hereby issued that the impugned mandatory minimum sentences are discriminatory in nature because they give differential treatment to a convict under the impugned provisions distinct from the kind of treatment accorded to convicts under other offences which do not impose mandatory sentences, so, mandatory minimum sentences violate accused rights under Article 27 of the Constitution,” read part of the judgement.

“The provisions ignore the offenders’ personal circumstances and the aspect that sentencing is a legal issue which forms part of the principles of a fair trial.”

In this case, the petitioners had moved to the High Court arguing that the mandatory minimum sentences are unjust and unfair, adding that the discretion of the judges and magistrates has been taken away.