THE PLACE OF MANDATORY SENTENCES IN KENYA

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In Kenya, the interplay between justice, deterrence, and individual rights has sparked a fervent debate surrounding the use of mandatory sentences within its legal framework. The concept of mandatory sentences, where predetermined punishments are prescribed for specific offences, stands as both a mechanism for consistency in sentencing and a point of contention due to its potential to undermine judicial discretion. The discourse around mandatory sentences encapsulates a number of considerations ranging from human rights concerns to the efficacy of deterrence, all while navigating the delicate balance between justice for victims and the fair treatment of offenders.

Francis Karioko Muruatetu & another v Republic (2017) eKLR (Muruatetu Case)

14th December 2017 marked a pivotal moment in Kenya's criminal justice system following the judgment in Francis Karioko Muruatetu & another v Republic (2017) eKLR by the Supreme Court of Kenya (SCORK). In the matter, two Petitioners, Francis Karioko Muruatetu and Wilson Thirimbu Mwangi challenged the constitutionality of the mandatory death sentence stipulated under Section 204 of the Penal Code, as well as the substitution of that sentence with life imprisonment. In a landmark decision, the SCORK declared the mandatory death sentence unconstitutional, signifying a departure from the previous practice that required judges to impose the death penalty for specific offences.

The SCORK ruled that the mandatory death sentence was unconstitutional insofar as it did not allow for individualized consideration of circumstances and lacked proportionality. However, the Court did not address the constitutionality of the sentence of life imprisonment, noting that the matter had neither been canvassed before the Court of Appeal (CoA) nor the High Court (HC) hence it was not available for the SCORK’s determination.

The Muruatetu decision by the SCORK opened a floodgate of appeals in superior courts across the country, with Appellants challenging the constitutionality of the sentences handed down in their respective cases as well as seeking resentencing in light of the Muruatetu judgment. To provide clarity and ensure consistent application, the SCORK issued directions and guidelines on 6th July 2021, clarifying that the Muruatetu decision only applied to sentences for murder under Sections 203 and 204 of the Penal Code.

Be that as it may, the Muruatetu decision continues to shape the criminal law jurisprudence with reference to mandatory sentences as was witnessed recently in Malindi Criminal Appeal No. 12 of 2021.

Malindi Criminal Appeal No. 12 of 2021 : Julius Kitsao Manyeso v Republic

The judgment in this matter was rendered by a three-judge bench comprising of CoA justices P. Nyamweya, J. Lesiit and G.V Odunga at Malindi on 7th July 2023. The Appellant had been charged with the offence of defilement. The victim was a minor aged 4 and a half years. Having been found guilty of the offence, the trial court handed down a sentence of life imprisonment against the Appellant in accordance with Section 8 (1) as read with Section 8 (2) of the Sexual Offences Act No. 3 of 2006. Aggrieved with the trial court's decision, the Appellant lodged an appeal at HC which was dismissed necessitating a second appeal at the CoA.

Among the grounds of appeal at the CoA was the contention to wit, the mandatory life sentence under Section 8 (2) of the Sexual Offences Act is unconstitutional thus echoing the decision in Muruatetu. The Appellant argued that an indeterminate life sentence without the possibility of release or review violated his rights to dignity and equality before the law. Whilst the CoA noted that the SCORK's decision in Muruatetu did not specifically address the constitutionality of mandatory life sentences, it observed that the principles therein could be applied to challenge the imposition of such sentences.

The CoA held that the imposition of an indeterminate life sentence violates the right to dignity and equality before the law. In this regard, the CoA set aside the life sentence imposed on the Appellant by the trial court and substituted it with a sentence of 40 years imprisonment, starting from the date of the Appellant's conviction.

In this judgment, the CoA emphasized the importance of striking a balance between punishment and the principles of deterrence, rehabilitation and human rights in the criminal justice system. It recognized that while offenders should be held accountable for their actions and steps taken to prevent repeat offences, they should also be given the opportunity for rehabilitation and eventual reintegration into society. The judgment emphasized the need for individualized sentencing, taking into account the specific circumstances of each case and the offender. It recognized that sentencing should not be solely based on the severity of the crime but should also consider factors such as age, potential for rehabilitation, and the overall principles of justice.

Raging Public Discourse

The CoA judgment in Malindi Criminal Appeal No. 12 of 2021 above has since elicited public debate and reignited discussions over the seemingly elusive final position on the question of constitutionality of mandatory sentences within Kenya's criminal justice system. Critics of the CoA judgment above have expressed their reservations concerning the judgement under three broad subheads. Firstly, that the CoA considered the question of constitutionality of the life imprisonment yet the same was not canvassed before the HC. The inclusion of this issue for determination by the CoA therefore prompts questions about the basis for its consideration. Secondly, the issue of jurisdiction. Critics have reiterated that matters of constitutionality primarily lie within the jurisdiction of the HC in the first instance and not the CoA. Lastly, the broader importance of sentencing as a matter of public significance. The public awaits to see whether the Office of the Director of Public Prosecutions (ODPP) will exercise its discretionary right to pursue an appeal based on these concerns.

Conclusion

There is no doubt that sentencing as a matter of principle should afford convicted offenders the possibility of rehabilitation or reintegration into society. Whilst mandatory sentences can provide a sense of justice for victims and their families, there are arguments that mandatory sentences can be excessively punitive and fail to address the underlying causes of criminal behavior.

In recent years, there has been a growing global movement towards reconsidering mandatory life sentences and exploring alternatives such as, rehabilitative programs, and restorative justice approaches. As the ongoing discourse unfolds, the role of the judiciary and ODPP remains critical in shaping the trajectory of criminal jurisprudence in Kenya. The interplay between the judicial system, legal frameworks, and the pursuit of fairness demonstrates the dynamics at play, affirming the importance of seeking a balanced and equitable resolution. In the end, it is a testament to the enduring commitment to justice, a commitment that ensures the rule of law is upheld, ethics, and societal expectations. The goal is to strike a balance between accountability, public safety, and the potential for offenders to be reintegrated into society after serving an appropriate period of punishment and/or rehabilitation.

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