A recent Court of Appeal decision attracted a good deal of media attention, and, no doubt, generated a good deal of criticism.
SENTENCING FOR DEFILEMENT
The Sexual Offences Act says that someone found guilty of having sexual intercourse with a child (defilement) must be sentenced to a minimum period - how much depends on the age of the child.
If the child was 11 years old or less, the sentence is imprisonment for life. If the child was between 12 and 15, it was 20 years at least, and if the child was 16 to 18 the sentence is 15 years at least.
The issue in the Court of Appeal was whether these provisions are unconstitutional.
This law applies regardless of whether the child victim agreed to the intercourse or not. The law says you cannot consent to intercourse, if you are under 18.
THE PROBLEMS
Many people welcomed the Act because they felt it takes sexual offences seriously. But some concerns were raised.
The most difficult issue has been that of the young man who has sex with a girlfriend, where both are fully in agreement, and indeed the relationship may be quite established. The Court of Appeal has often commented on this.
The Judiciary’s task force on sentencing commented that “it is clear that the provisions of the Sexual Offences Act are being used to unduly and excessively punish young offenders who end up bearing the brunt of consensual conduct.”
So, many young men are having their lives ruined (and how else can we describe the fate of a kid of 18 who is sent to prison for 15 years, to be educated in crime, and not to be released until at least 10 years have passed?) because they have had sex with a perfectly willing girlfriend.
At the same time, the girls are often being abandoned just when they thought they were settling down —perhaps with the father of their child. And babies are being deprived of paternal care, and the number of single mothers increased.
DID SUPREME COURT RESOLVE THE ISSUE?
Many people thought that when the Supreme Court decided that the law saying anyone convicted of murder must be sentenced to death is unconstitutional, the way was being opened to deal with the defilement sentence problem.
But no. The Supreme Court came back and said their decision in that case (Muruatetu) was only about murder and the compulsory death sentence. It is true that technically, a fixed sentence is different from a minimum one. But in the Sexual Offences Act, the sentences for defilement of a girl under 12 is actually a fixed sentence – life was the only possible sentence. And the other two sentences have been effectively fixed – courts have usually applied the 15 years or the 20 years, not more.
To be fair to the Supreme Court, it did not say it would never decide that a minimum sentence was unconstitutional – but that it had not decided this. And secondly, it was concerned about a genuine and practical problem – that large numbers of people were coming before the courts asking that they be resentenced. They were claiming their sentences were unconstitutional and they should be given a change to have their sentences reconsidered by a judge who was able to make a decision based on the circumstances of the particular case, not bound to impose a certain minimum.
You may be familiar with the idea that judges make law. How does this work? It goes further than saying the court decision in a particular case between Mr X and Ms Y is final and must be obeyed. It means that the legal reasoning used by the court must also be applied by later courts in other cases. This is especially true if the first case is decided by the Supreme Court.
Even the Constitution says that decisions of the Supreme Court must be followed by other courts. But exactly what did the Court decide in Muruatetu? Clearly it was more than that Muruatetu and his fellow murderer should not have been automatically sentenced to death.
The Supreme Court’s reasoning was that the compulsory death penalty was unconstitutional. That reasoning included that a fair trial (guaranteed by the Constitution) involves the courts being able to decide the right sentence. Also to treat everyone convicted of a certain crime exactly the same way in terms of sentence violated their right to dignity (also recognized by the Constitution). Also this one-sentence-fits-all approach risked imposing a cruel and inhuman punishment in some cases (also prohibited by the Constitution).
The Court of Appeal said that the Supreme Court’s reasoning should be applied more widely, including to minimum sentences. This is the way judges make law – by taking the decision in earlier cases and showing how the logic can be used in somewhat different situations. And the first court can’t stop that process in later courts.
The Court of Appeal also said for Parliament to decide the sentences was to take over a function of the Judiciary – and interfere with the independence of the Judiciary.
This was not the first time the Court of Appeal had reached a similar decision.
WHAT NEXT?
What is necessary now is for the state (here the Director of Public Prosecutions) to appeal to the Supreme Court so we can have a final decision on the issue. At present, there is confusion. Some judges and magistrates are still applying minimum sentences as though they have no choice.
Whether the Supreme Court does or does not think its Muruatetu reasoning covers the minimum sentences issue, they will have to decide what to do about minimum sentences, if the case comes before them. And what it decides would then have to be followed in other courts. They could, for example, follow the Canadian courts. Those courts focus on whether there is a real risk of cruel and inhuman punishments in the specific type of case before them.
Personally, I hope the Supreme Court will declare minimum sentences generally unconstitutional. But one can understand the argument that if the elected lawmakers have decided after careful consideration that certain offences are so serious there ought to be a minimum sentence, the courts should be reluctant to disagree. But how careful are our lawmakers? It is odd that they did not, when specifying minimum sentences for offences against children over 11 but under 18 specify maximum sentences as well as minimums. This does not look like careful lawmaking.
The courts will need better guidance on how to decide appropriate sentences, if they have a choice. The task force that developed sentencing guidelines did not focus on the specific issues that might arise in connection with particular types of offences and of course treated defilement as one for which the courts had no choice anyway.
Unfortunately, the Court of Appeal, concentrating on whether it had the right to pass an individualised sentence, did not explain why it decided to reduce the sentence actually imposed in the particular case before it from 20 years to 15.
One of the jobs of appellate courts is to give guidance on sentencing to lower courts. It is not a matter of personal gut feeling or preference. Like any other discretion, the discretion to sentence must be exercised “judicially” - this means on some basis of reasoning, and with consistency.
IS THERE A PROBLEM STILL?
Some people will fear that this will mean defilement is treated less seriously. The Court of Appeal emphasised that “some accused persons are obviously deserving of no less than the minimum sentences as provided for in the [Sexual Offences Act] due to the heinous nature of the crimes committed. And they will continue to be appropriately punished…”
But those not deserving of such punishment should be treated less harshly. Overall, this decision, of a court comprising two women judges and one man, is motivated by valid and very human, and human rights-based, motives, and is to be welcomed.
