Haji wants apex court to rule on sexual law feud

The Director of Public Prosecutions Noordin Haji wants the Supreme Court to determine the legality of mandatory sentences imposed under the Sexual Offences Act to offenders found guilty.

In court filings seen by ‘People Daily’, Haji wants the apex court to interpret provisions of the law after the Court of Appeal and the High Court held the Act as illegal.

In his recent move, Haji intends to challenge the finding of the Court of Appeal, rendered early this month, that declared mandatory sentences under the Sexual Offences Act  illegal and unconstitutional.

The DPP says this has caused confusion at the trial courts, and has irreversible implications to victims of sexual violence. 

“The orders issued by the Court of Appeal are bound to have serious, irreversible implications as persons already serving sentences under the Sexual Offences Act are at liberty, and indeed have begun, to petition various courts for fresh hearings regardless of the gravity of their offences,” says the DPP in court filings through Principal Prosecution Counsel Duncan Ondimu. The DPP has already lodged a notice of appeal against the court’s findings.

Escalate the case

In an application under a certificate of urgency, the DPP wants the court to grant him authority to escalate the case, which stemmed from the trial of prisoner Joshua Gichuki Mwangi, to the apex court for interpretation of the provisions of the law. 

The DPP says the intended appeal is a matter of general public importance because of the huge implications caused by the judgment dated October 7, 2022.

“Trial courts are in the process of reviewing sentences (of sexual offenders in prison), taking into account the decision of the Court of Appeal, which has led to chaos, confusion and uncertainty in the determination of sexual offences cases through inconsistent sentences ranging from non-custodial sentences to probatory sentences,” says Ondimu. 

He says the DPP is aggrieved and dissatisfied by the Appellate Court’s finding that the sentences imposed in the Sexual Offences Act are unconstitutional. 

A three-judge bench comprising justices Wanjiru Karanja, Patrick Kiage and Jamilla Mohammed held that Parliament, in stipulating the mandatory sentences, usurped the judicial function of courts to decide the appropriate penalty/punishment of a sexual offender depending on the circumstances of each case. 

Proportionate sentences

The implication of the landmark judgment is that it gave magistrates courts free hand to pass any punishment they deem appropriate other than those prescribed in the law. The Court of Appeal held that the mandatory nature of the sentences imposed by the law denies courts discretion and independence of issuing proportionate sentences that each offender deserves.

Since offences occur under diverse circumstances, the court held that it is unfair to compel courts to condemn the offenders to a general punishment yet some accused persons deserve no less than the minimum sentences provided for in the law.

“This (sentencing) being a judicial function, it is impermissible for the Legislature to eliminate judicial discretion and seek to compel judges to mete out sentences that in some instances may be grossly disproportionate to what would otherwise be an appropriate sentence,” the court said. 

 “This goes against the independence of the Judiciary as enshrined in Article 160 of the Constitution. Further, the Judiciary has a mandate under Article 159 (2) (a) and (e) of the Constitution to exercise judicial authority in a manner that justice shall be done to all and to protect the purpose and principles of the Constitution,” it added. 

But the prosecutor says the Court of Appeal ruling has violated the principle of separation of powers as espoused in the Constitution of Kenya (2010).

He adds that the judgment has resulted in a further violation of the fundamental rights and freedoms of victims. He cites the rights to access justice, equal protection of the law and the right to dignity.

“This court should take judicial notice of the high prevalence of sexual offences reported countrywide and currently pending or have been adjudicated, estimated to be 15,496 for the financial year 2021/2022, demonstrating that it is a matter affecting the society as a whole,” says Ondimu. 

He wants the court to issue an order suspending the implementation of its judgment, and adds that the appeal to the apex court is not only a matter of public importance but also one that involves interpretation and application of the Constitution.

Pending the hearing and determination of the application, he also wants the court to order the subordinate courts to apply the law as prescribed in the Sexual Offences Act and that they should stop applying the Court of appeals decision to the effect that mandatory sentences under the Act are unconstitutional.

In the disputed judgment, the appellate judges held that courts have a duty to dispense justice not only to the complainants but also to accused persons.

And the prosecutor argued that minimum sentencing as provided for in the Act does not take away judicial discretion.