Judge to Hear Bid Challenging Fixed Sentences in Sexual Offences Act

A fresh legal challenge at the Millimani Law Court has reopened the disputed debate over mandatory minimum sentences in sexual offence cases, with a petitioner seeking to grant judges wider sentencing in judicial choice.

Filed before Justice Gregory Mutai, the case questions the constitutionality of fixed penalties under the Sexual Offences Act, arguing they limit judicial independence and prevent courts from considering the unique circumstances of each case.

The petitioner wants the court to declare the provisions unconstitutional or reinterpret them as non-binding guidelines.

The law currently prescribes strict punishments, including life imprisonment for defilement of children aged below 11 years, at least 20 years for victims aged between 12 and 15, and a minimum of 15 years for those aged 16 to 18.

The petitioner also says other offences, such as rape and gang rape, also attract heavy compulsory sentences.

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The Debate Over Judicial Discretion vs. Mandatory Sentencing

In the petition, the applicant tells the court to allow judicial officers to turn aside from the prescribed minimums where justified.

“Courts should have the discretion to impose appropriate sentences based on the facts before them,” the petitioner argues, adding that rigid sentencing frameworks risk unfair outcomes.

State counsel Samwel Kaumba, however, opposed the case at the preliminary stage, stating that the issues raised have already been determined by superior courts.

“This honorable court lacks jurisdiction to reopen matters that have been conclusively settled,” he said, noting that a formal objection had been filed.

The petitioner, in response, argues that the legal landscape has shifted, so courts need to take another look at the issue with constitutional principles that reflect fair trial, dignity, and equality in mind.

They point to earlier court decisions that struck down mandatory sentencing rules because those rules limited judges’ ability to make their own calls.

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Judiciary’s Authority and Constitutional Principles in Sentencing

Civil society organizations, including the Federation of Women Lawyers (FIDA), have joined the proceedings as interested parties.

While they did not oppose the empanelment of a multi-judge bench, they stated that they acknowledged that higher courts have issued differing decisions on similar matters.

The petition also faults Parliament for imposing rigid sentencing rules that allegedly undermine the judiciary’s role. It calls for a sentencing approach that balances deterrence, rehabilitation and proportionality.

Justice Mutai scheduled the next hearing for May 6. The court will start by deciding if it has the authority to hear the case and if the issues raised are truly constitutional.

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Court Hammer signifies the conclusion of court ruling
PHOTO/File