The High Court has ordered the retrial of defilement suspects in the country arguing that the mandatory minimum sentences on sexual offences impinge on a fair trial guaranteed under Article 50 of the Constitution.
Mombasa resident judge John Mativo ordered that persons convicted and imprisoned under the said offences are now at liberty to petition the High Court for mitigation and re-sentencing following his landmark judgment issued on Thursday, September 1, 2022.
"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.
"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," Justice Mativo said.
Justice Mativo noted that all suspects, who were convicted of sexual offences and whose sentences were passed on the basis that the trial courts had no discretion but to impose the said mandatory minimum sentence, are at liberty to petition the High Court for orders of resentencing in appropriate cases.
"The grounds in support of the plea for the declaration of constitutional invalidity of the mandatory sentences are that they interfere with a fair trial guaranteed under Article 50 of the Constitution defilement suspects are prejudiced by being deprived 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 said.
Justice Mativo further 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 thus depriving magistrates sentencing discretion.
"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."
The petitioners were individually charged, tried and convicted of the offences under the above provisions and sentenced to life imprisonment and/or the mandatory minimum sentences prescribed under the Sexual Offences Act.
Sexual offenders' petition
The petitioners had moved to court seeking an order for re-hearing of their mitigation and sentencing depending on each petitioner’s circumstances.
They had informed the court that, the impugned provisions prescribe minimum mandatory sentences, with no discretion to the trial court to determine the appropriate sentence to impose.
The petitioners asked the court to take into account the accused persons' individual circumstances and mitigation, sentences which they argued, fall foul of the right of a fair trial guaranteed under Article 50 of the Constitution because lack of mitigation and sentencing are part and parcel of a fair trial process.
