CREAW call upon state to appeal High Court’s decision on sexual offences Act
The Centre for Rights Education and Awareness (CREAW) has called upon the State to fulfil its legal obligation of appealing the decision made by the Machakos High Court on May 17, 2022 that was contrary to the Sexual Offences Act.
Through a statement, CREAW stated that the Machakos High Court, led by Hon. Justice Odunga ruled that the mandatory minimum sentences issued by the Act were unconstitutional.
“However, on 17th May 2022, Hon. Justice Odunga of the Machakos High Court ruled that the mandatory minimum sentences provided by the Sexual Offences Act for sexual offenses are unconstitutional and that they limit the discretion of the court to determine the appropriate sentence to impose. Consequently, various courts across Kenya are now faced with an overwhelming number of applications for resentencing, by prisoners previously convicted of sexual offences. This precedent claws back on the gains made by women’s rights movements over the years to ensure that gender-based violence is treated with the urgency and weight it deserves,” the statement read.
The Act was enacted in 2007 to make provisions about sexual offences, their definition, prevention, and protection from all persons from harm and unlawful sexual acts.
It acknowledged the serious nature of sexual offences by setting mandatory minimum sentences where an accused person is found guilty of a particular offence.
Since the Machakos High Court had not been appealed by the Attorney General or the Office of the Director of Public Prosecutions, similar courts and those of lower jurisdiction have followed suit with the same judgement that had been issued.
“To date, the Machakos High Court judgment has not been appealed by either the Attorney General or the Office of the Director of Public Prosecutions and as it stands it is binding on all courts of similar or lower jurisdiction,” read the statement in part.
The organisation has stated that other courts had similar cases pending before other High Courts such as the Narok High Court, where it was enjoined as an interested party.
“It is important to note that there were similar cases pending before other High Courts in Kenya such as the Narok High Court where CREAW was enjoined as an interested party. However, they are now bound by the judgment of the Machakos High Court. More recently, the High Court of Kenya at Mombasa has followed suit with a similar judgment,” the statement added.
The Initiative for Strategic Litigation in Africa (ISLA) established the Feminist Litigation Network (FLN) which aims at developing a pool of African feminist strategic litigators which is achieved by partner organisations and a raft of capacity strengthening activities such as the strategic litigation institute.
It is in partnership with CREAW and FIDA-Kenya who have partnered with other women’s rights organisations such as Equality Now to ensure that the State is held accountable for their failure to fulfil their due diligence.
Some of their obligations are to prevent gender-based violence, protect survivors, investigate violence, prosecute and punish perpetrators and ensure that survivors obtain effective remedy.
