Case of Kenyan judge unfairly judged

The legal fraternity has been abuzz since the Daily Nation reported that Judge Said Juma Chitembwe had earned some dubious international recognition for making “one of the worst court rulings on gender equality globally”.

The judge, who set free a man convicted of defiling a 13-year-old girl, arguing that the minor seemed willing to have sex with the man, was condemned by the Madrid-based Women’s Link Worldwide for “setting a dangerous precedent”.

It looks obvious that this judgment is an affront to every proclamation we have made in defence of the girl child, but I want to argue about the contextual dilemma the case places on our jurisprudence and why we need to openly debate it. And this is not a matter for legal minds alone.

SNEAKS AWAY
Let’s first look at the background. Judge Chitembwe, sitting at the High Court in Malindi, set aside a 20-year jail sentence that a magistrate had handed to Martin Charo, 24, for defiling the girl between December 2011 and January 2012, in Kilifi County.

The evidence on record was that on that day the girl went to the beach with her siblings.

On their way home, she evaded them and sneaked into Charo’s house.

Her verbatim evidence in the trial court was that she went to his house to have sex.

CHARO FREED

In the evening, her brothers went to Charo’s home, peeped into his house and saw their sister having sex with the young man.

The brothers took off, and the girl remained with her “boyfriend”, with whom she had been having sex regularly for quite some time.

Judge Chitembwe freed Charo on the conclusion that even though the girl was underage, she had been having an affair with him for a long time and was knowledgeable about sex.

He surmised that when children defile the law by behaving like adults, they should not be considered as victims.

MERITS OF JUDGEMENT
What must have influenced his decision fundamentally was the social-cultural environment where this was happening.

In Kilifi, just like in the northeastern region, Maasailand and a few other parts of the country, girls are considered ready for marriage from as early as 12, and, indeed, it is a big shame.

What we should now be debating is whether handing out a 20-year sentence to a random young man who probably is himself the product of a culturally permissible liaison with a 13-year-old will eliminate the problem, or serve justice in the short and long term.

To assess the merits or otherwise of the Chitembwe judgment, we must do so not purely on the basis of universal jurisprudence, but in cognisance of the social-cultural environment as well.

SOCIO-CULTURAL
If the judge were sitting in Nairobi or Kericho, for example, the different local experiences would have influenced his decision, meaning that even in a country context, the law cannot be applied without considering this.

That is why a girl in Turkana can roam the streets of Lokitaung Township in complete topless splendour and not be breaking the law.

The same cannot apply when a girl walks out of her office in Nairobi’s Tom Mboya Street in a similar fashion.

She will be arrested and charged with indecent exposure.

SEXUAL OFFENCES ACT

In Spain, where the so-called Golden Bludgeon Award was given to Judge Chitembwe, the marriageable age for girls was 14 years until the other day when it was raised to 16 in line with other European Union countries.

Besides the social-cultural dimension, the judgment had a strong legal basis.

As observed by the learned judge, she “….was a young lady aged 14 already engaging and enjoying sex with men. She was not complaining about it; besides, the appellant in the case was not the only man she had engaged in sex with.”

Under Section 8 (5) of the Sexual Offences Act No 3 of the Laws of Kenya, it is a defence if it is proved that such a child deceived the accused into believing she was an adult and he reasonably believed so.

FAIRNESS

The girl behaved like she was able to consent and this, taken together with the socio-cultural practices and environment, enhances the excuse to the general application of Section 8 on the offence of defilement.

It is crucial that we find an effective way of assisting girls growing up in the marginalised places.

Sexual offences must be punished to protect the girl child and help her grow into responsible adulthood.

But the punishment must be meted contextually, otherwise the line between justice and injustice will be blurred.

Mr Kithi is an advocate of the High Court based in Nairobi. [email protected]