May 28th 2017

Magazine / Gender Matters

Defilement: Acquittal of a convicted man raises need to review our positions on sexual offences

Writing on a civil society online forum, governance and rights activist Cyprian Nyamwamu said; “Justice Chitembwe is not your top cream judge,”— recalling the judge’s suspension from judicial work for nearly two years when he faced criminal charges.

By Free Press Correspondentnewsdesk@kenyafreepress.comFriday, 03 Jun 2016 06:49 EAT

Judges should be given a free hand to weigh scales.

The failure by a trial court in Malindi to consider the excusatory provisions of the Sexual Offences Act has led to the acquittal of a man convicted of defilement, causing uproar among children’s rights campaigners who fear the acquittal could set a dangerous precedent. Martin Charo, 20, had been convicted and sentenced by a Magistrate’s court to 20 years imprisonment for defiling a 13-year-old girl. But the conviction and sentence were quashed on appeal by High Court judge Said Chitembwe who faulted the trial court for not putting into consideration the fact that “the girl enjoyed intimacy like an adult thus causing the defendant to reasonably believe that she was of age.”

Defilement is an offence under Section 8 of the Sexual Offences Act, which provides that—a person who commits an act which causes penetration with a child is guilty of an offence termed defilement. The section further provides that, “a person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life;” and that “a person who commits an offence of defilement with a child between the age of 12 and 15 years is liable upon conviction to imprisonment for a term of not less than 20 years.” The third arm of the offence of defilement holds that “a person who commits an offence of defilement with a child between the age of 16 and 18 years is liable upon conviction to imprisonment for a term of not less than 15 years.

Charo had been charged and convicted under the second arm of the offence of defilement since the girl in question was 13. During the trial, the accused did not deny having had sex with the girl, thus giving the impression, to the casual reader of the Sexual Offences Act, that the prosecution had an open-and-shut case against the accused.

However, an analysis of further provisions of Section 8 reveals that there are defences which, if pleaded successfully, can spare defilement suspects the severe penalty of not less than 20 years imprisonment.

The exonerating provision under Subsection 8(5) provides that “it is a defence to a charge under this section if— (a) it is proved that such child deceived the accused person into believing that he or she was over the age of 18 years at the time of the alleged commission of the offence; and (b) the accused reasonably believed that the child was over the age of 18 years.

The exonerating provision further clarify that; “the belief referred to in subsection (5)(b) is to be determined having regard to all the circumstances, including any steps the accused person took to ascertain the age of the complainant.”

In giving Charo the benefit of doubt pursuant to subsection 5(b), Justice Chitembwe said: “It is important to distinguish between law and morals. Although the girl in this matter was 13 and 14 when she had sex with Charo, what happened to her cannot be classified as defilement because she freely went to Charo’s house for sex for several times and appeared to enjoy this.”

In holding the foregoing view, the judge pointed out that the legislative intendment of the Sexual Offences Act, when declaring defilement an offence, is to deter adult men from luring under-age girls into sex. In Charo’s case, it appears he did not exactly lure the girl into having sex with him.

From the evidence adduced in the Magistrate’s court, it was demonstrated, on a balance of probability, that the conduct of the girl throughout the relationship caused Charo to reasonably believe that she was of majority age. The judge relied on the girl’s testimony, pointing out that “during the relationship, she used to sneak from her parents’ home and visit Charo for sexual encounters.”

The judge further noted that parents of both Charo and the girl were aware of the relationship, and it was the girl’s brothers who, after severally trying to dissuade her from visiting Charo, instigated Charo’s arrest and prosecution.

In this regard, Justice Chitembwe held that the offence of defilement was not proved at the trial stage beyond reasonable doubt in the sense that the accused had a lawful and successfully pleaded defence which the trial court declined to consider without any lawful reason.

The ruling sparked furore. The Centre for Rights Education and Awareness, an NGO, announced it was canvassing for support to marshal civil society action against the appeal. The office of DPP also promised to move to the Court of Appeal.

Paul Adhoch, the director of a national counter trafficking in persons NGO, wrote in an online Civil Society magazine; “children have no capacity to consent. The fact that it appears to have happened repeatedly makes it sexual exploitation under the Counter-Trafficking in Persons Act, which incidentally is a more severe offence.”

Wangari Karige and Samantha Oswago, attorneys at Kituo Cha Sheria—a non-governmental legal aid group— said the judgment put the victim rather than the appellant at trial.

“What the superior court admitted and also implied in the ruling is that there are paedophiles, casually and repeatedly engaging in sexual relations with minors with absolutely no dread of the law and that some of these pedophiles may actually be let scot free by virtue of the supposed behavior of the child victim.”

A month before his ruling in Charo’s case, Justice Chitembwe acquitted another man, Ambrose Kabuka, who was also serving a 20 year sentence for defilement. Kabuka had been jailed by Kilifi resident magistrate Dennis Kinaro for cohabiting with a minor, also 13. He appealed to the High Court.

That ruling was no less controversial. The judge argued that the girl enjoyed the relationship and that, were it not for an accidental pregnancy two years into the affair, her relationship with Kabuka would have continued.

The judge conceded that an underage girl cannot consent to sexual intercourse but at the same time argued that evidence adduced in court showed that she presented herself “as an old girl who could stand a man”.

Justice Chitembwe’s rulings have been censured as much for their substance as for his animated language that some critics say betrays his sympathy for sexual offenders.

Writing on a civil society online forum, governance and rights activist Cyprian Nyamwamu said; “Justice Chitembwe is not your top cream judge,”— recalling the judge’s suspension from judicial work for nearly two years when he faced criminal charges.

In December 2009, Justice Chitembwe was prosecuted for abuse of office and conspiracy to steal Sh1.37 billion from the state pensions fund— National Social Security Fund— where he had previously served as company secretary. He was suspended until October 2011 when he won the case and resumed his duties.

Few analysts have considered the limited options judges have in deciding cases under the Sexual Offences Act. The Act has many mandatory sentences, hence judges who deem the charges defective or that prosecution failed to prove its case beyond reasonable doubt have no option but to acquit.

Mombasa-based lawyer, Timothy Bryant, who has done many pro bono human rights cases said that Justice Chitembwe’s ruling is grounded in the legal requirement that the prosecution must prove its case beyond reasonable.

In this regard, Mr Bryant opines that the Act “needs to be adjusted to take into account modern jurisprudence on mandatory sentences and until that is done, these kind of incidents are going to be more and more common.”

Likewise, not much attention has been paid to the legislative history of the Sexual Offences Act to understand why the likes of Justice Chitembwe deliver such judgments. The Act was meant to punish men who take advantage of young girls. It can’t, however, upend norms in communities where, for reasons other than defilement, men have sexual relationships with young girls.

Because of this, each case should be evaluated on its own circumstances, and subsection 5(b) provides that in considering the defences available to the accused, regard has to be paid to all “reasonable” circumstances surrounding the alleged defilement.

When such evaluation is done, judges have had to release some suspects initially jailed under the Act. In the case of Duncan Mwai Gichuhi v Republic, the appellant sought to quash his conviction on two counts namely; (a) the offence of defilement contrary to Section 8 (1) as read with section 8 (3) of the Sexual Offences Act, and (b) committing an indecent act with a child contrary to Section  5 (1) (b) of the same Act.

The alleged crimes in this case were committed in November 2009 in Kieni West District where Duncan was arrested while living as husband to a 14 year old girl.

The girl testified that she had not been lured or coerced into the marriage, but rather they had held customary negotiations that brought together parents from both sides and some community elders.

The appellant’s defense was that there was consent between him and the girl and that he was deceived on the complainants’ exact age among others. Appeal judge Justice John Mativo found that the appellant had properly argued the defence provided under Section 8 (5) & (6), finding that the girl had for all intents and purposes agreed to be married formally and that she had lived with Duncan as his wife willingly and under no coercion.

The court agreed that the appellant was reasonable to believe that the girl was of full age and capacity and that he had no intention to commit the alleged offences. The court noted that the complainant wanted to get married to the accused and live with him as her husband.

“Both the girl and Mr Gichuhi admitted they were living as husband and wife,” Justice Mativo ruled, referring to a letter the girl had written to the Director of Public Prosecutions asking the government to release her husband to enable them raise a child that was born out of their relationship.

In these cases, judges transcended political correctness to deal with issues that bother so many Kenyans. The cases raise important questions about not just morality and law, but also the state of economic development in the country, and the limits of state authority on decisions people might make which can be reasonably deemed to not be in their best interests.

In most coastal communities, girls and boys marry at a young age. The government actively campaigns against early marriages, which constrain the capacity for young people, girls in particular, to achieve their potential.

Among the Mijikenda, it was common for deprived parents to offer young daughters to well-endowed men in return for bride price, an economic lifeline, and a better life for the daughters the parents believed only such husbands could provide their daughters.

A well-known Mijikenda woman activist, who was rescued from such a marriage, has recounted to many audiences how such marriages happen. While she was 10, her parents sent her to live with another family. One day after a long stay, the father of the household, who had treated her as a daughter, summoned her to start her new life as a wife.

Everywhere in Kenya, social workers deal routinely with cases where, given tough economic conditions, girls as young as 13 opt to marry immediately after primary school. What has not been seen, since the advent of the Sexual Offences Act, is a judge calling for a second look at the Act with regard to such cases.

What can the courts do with 14-year-old girls who want to get married? Is it the aim of law, given the permissiveness of today’s society, that all sexual liaisons involving minors should automatically result in conviction?

What of children having sex with other children? According to the Penal Code, the age of criminal liability for a child is 12 but one must ascertain that the child knew the consequence of their action.

Justice Chitembwe delved into these societal challenges, writing, “Children are not meant to enjoy sex. Whenever they do, then that becomes the behavior of an adult. Although the public will frown upon an adult who engages in sex with such a child, we should not forget that circumstances have changed. Young children engage in sex at a very young age. This is not out of defilement.”

The judge held that, if the proof of defilement was limited to penetration and age, “young girls would freely engage in sex and then opt to report to police whenever they disagree with their boyfriends.”

In areas where child marriages are rampant, only stringent law can protect vulnerable girls, but the state should also strengthen non-legal programmes to empower girls. Affirmative action in schools, the provision of sanitary pads and overall expansion of economic opportunities would give women power so they don’t feel they have to depend on men for their sustenance.

Where the law is applied, due care should be taken to avoid correctness or friction in society. Take the case of pastoralists who, in raiding cattle from neighbouring communities as a rite of passage, commit serious crimes. If the government dealt with the crimes in accordance with the law, thousands of cattle raiders would be prosecuted for robbery with violence offences that carry maximum penalties.

The reason this is not done is because law aims to punish criminal intent, not upend a people’s normal lives. Where the law is applied, and we need more of it alongside other campaigns for societal progress, we should allow judges to look at every circumstance of each case.

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