Why sexual violence remains a scourge in Kenya
Justice Said Chitembwe at a Nairobi court in 2010. PHOTO | PAUL WAWERU | NATION MEDIA GROUP
What you need to know:
We should remain vigilant against prejudices that obstruct justice for women and girls.
The protection of women’s rights is our collective responsibility.
Sexual violence remains a scourge in Kenya, with its most prevalent form being defilement. In 2014 alone, there were 6,101 defilement cases, while the number of sexual offences nationally was 13,828. One such case came before Judge Said Chitembwe in Malindi, in an appeal that overturned the conviction of a 24-year-old man alleged to have defiled a girl aged 13. The decision attracted the 2017 Golden Bludgeon Award, an international award created by Women’s Link Worldwide to highlight the positive and negative impacts of judicial decisions on the lives of women and girls. It was picked as the worst judicial decision affecting the rights of women and girls.
Justice Chitembwe held that it would be unfair for the man to serve the sentence as the girl “was after sex from him”, had “behaved like an adult” and “was enjoying the relationship”. He stated that “the offence of defilement should not be limited to age and penetration” and that “the conduct of the complainant plays a fundamental role in a defilement case”.
AN OFFENCE
The 2006 Sexual Offences Act provides that sexual relations with a child – any person below 18 – is an offence. In law, it is deemed that a child cannot give consent to sexual acts. The only elements that need to be proven in court, under Section 8 of the Act, are that the victim was, indeed, a child and that penetration occurred. Both were proven beyond a reasonable doubt as recognised by the trial and appeal courts. The judge went beyond the fundamental elements to state that the child did not complain about it and even ran away to the appellant’s parents’ home where they continued having sex for three days. He said that her conduct was “sneaky” and that she was “possibly enjoying sex with the appellant”.
The judge erroneously opened a Pandora’s box on “conduct of the child” to determine whether or not a crime was committed. This led the court to conclude that the victim was after sex, “was behaving like a grown-up, who was enjoying sex with men” and, therefore, a sexual offence had not been committed.
This judge’s wording and analysis were riddled with prejudicial attitudes and beliefs that lead to dangerous assumptions neither supported by facts nor recognised in law. Ignoring or substituting the fundamentals of a case with assumptions, leaves children exposed to sexual predators. The man’s conduct went unscrutinised, which shows bias that disadvantages women and girls in the quest for justice. There was no evidence that the child lied about her age; which would be a defence if it arose. However, considering that she was only 13, this would have been an incredible feat. It is evident that the man had not taken reasonable steps to ascertain her age, but the judge did not deem it crucial evidence.
ARE VULNERABLE
In recognition of the socioeconomic and cultural context, children remain vulnerable to child marriage, forced engagement in transactional sex and sex tourism, hence the need to protect them. Criminal law is meant to protect the population from harmful acts, including those regarded as “culturally permissible”. Its application of criminal law should not bow to contextual circumstances, more so in the case of sexual violence. Culture and or context cannot be a defence for violating the rights of women and girls.
The 2017 Golden Bludgeon Award given to this ruling during the ninth edition of the Gender Justice Uncovered Awards is, therefore, fitting. We should remain vigilant against prejudices that obstruct justice for women and girls. The protection of women’s rights is our collective responsibility.
Lydia Muthiani is a senior attorney at Women’s Link Worldwide.
