In 2018, the apex court declared unconstitutional section 204 of the Penal Code.

In 2018, the Supreme Court declared unconstitutional section 204 of the Penal Code directing courts to sentence to death anyone convicted of murder. It said this “deprives the Court of the use of judicial discretion in a matter of life and death …Where a court listens to mitigating circumstances but has, nonetheless, to impose a set sentence, the sentence imposed fails to conform to the tenets of fair trial … under Article 25 of the Constitution.”

And “Refusing or denying a convict facing the death sentence, to be heard in mitigation when those facing lesser sentences are allowed to be heard in mitigation is clearly unjustifiable discrimination and unfair.”

The Supreme Court issued later “Directions” that Muruatetu had only decided about murder, though they anticipated future cases on other situations.

The Sexual Offences Act

The logic of the court’s statements naturally led to challenges to other Acts that limit the possibility of a convicted person urging a court not to be too severe in sentencing, and taking away the choice of sentence from the court, the Sexual Offences Act in particular. The most problematic issue is a minimum sentence of 15 years for having sex with anyone between 16 and 18.

Young people in a genuine relationship may fall foul of the law, the girl being unable (legally) to consent to sex and the boy guilty of defilement and sent to prison for at least 15 years. (This is often called a Romeo and Juliet situation from Shakespeare’s young lovers.)

Other aspects are problematic, too. The girl is 14 years and 11 months – minimum sentence 20 years; the girl is 15 years and one day – sentence is 15 years minimum. The (willing) girl is 18 years, no crime is committed.

In February the Court of Appeal in Kakamega spoke of “the shift in our jurisprudence on the imposition of mandatory minimum sentences prescribed in the Sexual Offences Act.” It said that these, quite numerous, cases were based on the reasoning in Muruatetu.

The new case

Joshua Mwangi was found guilty of defiling a girl of 15. The court, relying on Muruatetu and other cases, and holding that the 20 years was not mandatory, had reduced his sentence to 15. The Office of the Director of Public Prosecutions took his case to the highest court. A group of NGOs appeared as friends of the court, mostly arguing in favour of the constitutionality of the SOA sentences, though recognising some problems, especially the Romeo and Juliet situation. They had concerns about seriously inadequate sentences being awarded in some cases.

Let’s consider the Supreme Court’s main points. First – they held that the Muruatetu case applies only to the mandatory death penalty for murder. The CA was wrong to ignore the Muruatetu “Directions” and had violated the rules of precedent.

But, not all their statements in Muruatetu were applicable only to murder. We have previously criticised those “Directions” in this column. Law develops mainly by law passed by Parliament but also by decisions of judges. That involves a process of analogy – applying previous court reasoning to similar situations. And the first court can’t prevent this, though it may get a chance to decide appeals on the developments it has inspired.

In 1932, a case about a bottle of ginger beer with a snail in it reached the UK’s highest court. The court held that a manufacturer could be liable for loss caused to a consumer by their negligence. That case was the basis of the entire modern law of negligence. It did not stop at ginger beer, or even manufacturing, but covers negligent driving, even some negligent statements, for example.

Second, the Supreme Court insisted that Muruatetu is only about fixed, not minimum, sentences. But, life imprisonment for defiling a child under 12 is fixed, not a minimum – there is nothing more than life. And I suspect that the 20 and 15 year sentences have also, in practice, been fixed rather than minimums.

Third, the Court of Appeal should not have decided Mwangi on the basis of constitutionality – because that argument had not been raised in the lower courts. But Mwangi was convicted in a magistrate court in 2011, and his High Court appeal was decided in 2015. The Supreme Court changed the law in Muruatetu in 2017. If a relevant Act of Parliament is passed before an appeal is heard, later courts must take account of it. Why not a change in judge-made law by no less than the Supreme Court?

Also, such a rigid bar on new points being argued in higher courts disadvantages poorer parties. The CA had to appoint a lawyer for Mwangi. Possibly he had no lawyer in the High Court.

Fourth (a related point), the court really needed a case that had been fully argued in lower courts. The Supreme Court does not choose its cases. The ODPP will identify cases to appeal to the Supreme Court against a lower court’s decision that they think wrongly favoured an accused. One hopes that the ODPP did not deliberately choose a rather weak CA case to increase their chances of winning. A better approach might have been to take several cases together to the court to ensure full consideration of the issues.

Fifth, the court felt that such rules on sentencing should be decided by Parliament. One problem is that we really cannot rely on Parliament to pick up these issues or deal with them well. There are not many votes in criminal law reform.

Mwangi’s prison term

Mwangi had served already been released, following the CA decision. The Supreme Court held he must go back to prison for the five more years. This is rather disturbing. What about all the other people whose sentences were reduced by the Court of Appeal but had not been appealed by the ODPP?

Judicial impartiality

Then nominated MP Njoki Ndung’u introduced the Sexual Offences Bill as a private member’s Bill in 2006. I am afraid it seems quite wrong for Justice Ndung’u to be involved in making a decision on the constitutionality of her “baby”.

What happens now?

I would suggest that the Supreme Court decided only one thing: that the Court of Appeal had no jurisdiction to decide on constitutionality of part of the Sexual Offences Act. Therefore the Supreme Court itself had no jurisdiction to go into that issue. They said other things but, while they should be treated with respect, they are not binding on other courts. They are what lawyers call “obiter dicta” – incidental observations.

We need courts to go on deciding these cases. I hope courts will continue to ignore those Supreme Court’s “Directions” because – in my view, I must stress – they are also not bound by them. Eventually maybe the ODPP will take to the court a case or cases that really raise the issues, and can be considered in depth.

We are in human rights territory here. The Muruatetu reasoning is founded on the right to a fair trial. But fair trial is a right that cannot be limited. Does law applying a different sentencing process for some offences limit that right? The Supreme Court also mentioned discrimination and dignity issues – these rights can be limited but only if this is justified under Article 24 of the constitution. More need for deep consideration by the courts.

Maybe full consideration should be given to the whole issue (by the Law Reform Commission?). A draft policy on the broad area of sexual offences in 2021 did not deal with the Romeo and Juliet issue though it recognised its existence. It proposed training of judges and magistrates on sentencing – that might be a better solution than the current rigid system, which the friends of the court said is necessary because of misguided members of the Judiciary imposing inadequate sentences.  

This article was first published by the Star Newspaper https://www.the-star.co.ke/siasa/2024-07-28-ghai-why-recent-supreme-court-case-is-disappointing/

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