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In 2006 The Sexual Offences Act was enacted after a great and animated debate spearheaded by various women organisations and orchestrated mainly by female MPs in the Parliament.
New legal definitions were created and mandatory and harsh penalties provided.
The Penal Code was amended and offences of rape; sexual assault; compelled or induced indecent acts; indecent acts committed in view of a family member; defilement; gang rape; indecent act with a child or adult; promotion of sexual offences with a child; child trafficking; child sex tourism; child prostitution, and pornography were crafted. Is the law five years down the line a success when assessed from the perspective of crime reduction, prevention or did the law create more problems than what Kenyans had bargained for?
In answering this pertinent question there is a legality that comes to the fore, and that is the methods of sentencing after conviction. Newspapers are full of disturbing incidents of sexual abuse and the sentences meted out. The rationale of sentencing policy is profoundly problematic with the lawmakers believing that long imprisonment is the only panacea.
Sample a few real life examples from decided cases: a consensual act of sexual intercourse between two students aged 17 years resulted in the male student being sentenced to 15 years, and the female going scot-free. A young man on the matatu stand could not resist the protruding and scantily clad bottoms of a young lady, and his act of patting that part of her anatomy earned him a 10 year sentence for indecent assault. Another one stole a kiss from a beautiful lady — his tragic reward was 10 years in Kamiti Maximum Security Prison! Was the law meant to be so rigid?
My complaint is that the law of mandatory sentences leads to unfairness and injustice. Sentencing — the legal technique of determining in a criminal court what sentence is appropriate for the person convicted — is and should be the prerogative of the trial court. I will go one stage further.
Under the new Constitution the stipulation of mandatory sentences for any offence may well be held to be contrary to the spirit of the law, and this aspect will arise in our courts sooner or later. In common law jurisdictions, sentencing is entirely for the court; the prosecuting counsel cannot propose a sentence nor can the defence. The decision is governed by a number of factors, in particular the offender’s age, mental state, education, criminal record, nature of the offence, circumstances of the crime and any other special facts related to the accused. To take away the discretion of the court in sentencing is, in many jurisdictions, a Constitutional affront.
The contention that long prison sentences prevent crimes of a particular nature is a proven fallacy in Kenya.
Stock theft, handling stolen property, and presently the offence of robbery with violence are all indicative of the failure of the theory, and there is no evidence to suggest that heavy sentences in sexual offences have reduced their occurrence.
In matters of sentencing, Kenyan courts, especially the higher courts have been reluctant to confront and adjudicate on the starkly contradictory legal provisions. Indeed, appealing against sentences is fraught with technicalities and unrealistic legalities.
There is a massive display of double standards by the courts and this is apparent in the sentencing regime for the offence of defilement — an act of having intercourse with a child defined as a person under the age of 18 years. Defiling a child under the age of 11 years carries the mandatory sentence of life imprisonment, and if the child is aged between 12 and 15 then the culprit must be sentenced to at least 20 years. A similar offence on a child aged 16 to 18 carries a minimum sentence of 15 years.
Recently, the Court of Appeal held that the death penalty in murder cases is not mandatory, and the penalty should depend on the merits of the case. However, manslaughter under Section 205 of the Penal Code has an identical provision that reads: “Any person who is convicted of the offence of manslaughter shall be liable to life imprisonment.”
This law has been interpreted to mean a sentence ranging from a day to life. Why the discriminatory sentencing policy by the same courts? Educating Kenyans on the severity of the law and a campaign in preventive measures is the way forward rather than making prisons a holding ground for sexual offenders without the slightest prospect of rehabilitating them.
—The writer is an advocate of the High Court. firstname.lastname@example.org
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