AG should initiate review of all laws on mandatory sentences

One of the most consequential and progressive decisions by the Supreme Court in relation to the criminal justice sector is what is famously known as the Muruatetu case. In this case decided in 2017, involving Francis Karioko Muruatetu V the Republic, the court considered at length the constitutionality of mandatory sentences. These are situations where the law provides that once one is found guilty of a specific offence, the court has to impose a specified sentence. The most famous of these offences in robbery with violence under Section 296 of the penal code.

The mandatory sentence in robbery with violence is especially controversial because of the wide range of the offence. Under what is colloquially referred as “stroke 2” in remand prisons, meaning Section 296(2), for a robbery to be violent and attract a mandatory death sentence, it ranges from the accused having and using a dangerous weapon to them merely being accompanied by others whether or not violence happens. Both attract the death sentence. These legal provisions are grossly unjust.

In the Muruatetu case, the Supreme Court agreed with the appellant that the mandatory death sentence, under Section 204 of the penal code, violated the principles of a fair trial. Amongst its deficiences, it infringed on the right to a fair trial by stripping judges of their discretion in sentencing. It also deprived courts of the ability to consider mitigating circumstances and impose a sentence that reflected the specific facts of the cases. There was immediate relief when the decision was made, the presumption being that the court had declared all mandatory sentences unconstitutional.

A judicial 'Wild West' then ensued, with courts applying the 'Muruatetu principle' differently, some ordering retrials and resentencing in any cases with mandatory sentences and others rejecting such applications arguing that the principle only applied to murder cases. The volatility eventually led the Supreme Court to clarify that the principles in Muruatetu only related to murder cases and that all challenges to mandatory sentences in other offences would have to be litigated separately all the way from the High Court until they reached the Supreme Court for determination on the application of the Muruatetu principles.

Since then, numerous parties have attempted to challenge the constitutionality of their death sentences, especially in robbery with violence cases at the Court of Appeal. Time without number, the court agreed with appellants that the mandatory sentence was unconstitutional, but expressed frustration at being unable to apply this principle because the issue of unconstitutionality had not been raised in the High Court. In our appellate process, appeal courts can only consider issues that were raised in the lower courts, they cannot try novel issues at appellate level.

Fortunately, for accused persons in fresh trials and appeals after 2017, the High Court has had an opportunity to express itself on the unconstitutionality of the mandatory sentences, particularly in robbery with violence cases, including Justice Rose Ougo’s recent decision in Desterius James V Republic where the judge applied the Muruatetu principle and required a resentencing. The challenge remains, however, that for cases and appeals already determined at the High Court, these decisions are of no effect. It will take the Court of Appeal and finally to the Supreme court before retrials/resentencing can be ordered across the board.

While one recognises the hesitation by the Supreme Court to deal with mandatory sentences in other cases suo moto, I believe Muruatetu granted an opportunity for the court to look beyond the murder offence and give general directions in mandatory sentences, particularly death sentences. It is for such reasons that the Supreme Court exists. That said, the other progressive direction the court made was to require the urgent review by Parliament of all laws on mandatory sentences.

This is where the principal solution lies and it is unfortunate that there has been some lethargy on the part of the office of the Attorney-General (AG) in moving this matter. One hopes that with an AG who lived in the prosecution trenches for decades and who must have struggled with the mandatory sentence question, we shall see more urgency in review of our laws to remove these travesties.

-The writer is an advocate of the High Court of Kenya