Murang’a Senator Irungu Kang’ata has disclosed his plans to force out Chief Justice David Maraga over his remarks on the consensual age for sex, claiming that the CJ overstepped his mandate when he made the remarks.
Last week, the CJ said the issue has been exacerbated by gaps in the criminal justice system and expressed dissatisfaction in the manner in which a Bill to decriminalise teenage sex was handled in Parliament.
It is this remark that seems to have angered Mr Kang’ata, who said that Mr Maraga’s expression of dissatisfaction with Parliament was uncalled for and unwarranted since his work is not making laws but to interpret them.
GAPS IN LAW
The CJ made the remarks last week during the launch of a two-day peer learning seminar on the criminal justice system on gender-based violence.
He intimated that gaps in the criminal justice system have seen jails being filled with teenage offenders, especially boys, who get intimate while experimenting on their adolescence.
“There is an obvious injustice of filling up the jails with teenage offenders who get intimate with fellow teenagers as they experiment in their adolescence,” he said.
CJ Maraga explained how the Federation of Women Lawyers (Fida) tried to address the issue by presenting a memorandum on the Bill which proposed amendments to the Sexual Offences Act in the National Assembly two years ago but in vain.
Fida wanted courts to have the discretion in sentencing where sexual offences are between minors, Mr Maraga said.
Although the chief justice said he has no issue with sentencing when the perpetrator is an older man, the senator said the proposal to give judges discretion in cases involving minors would see the consensual age for sex reduced from 18 to 16 years, a move he feels will open a Pandora’s Box and lead to older men abusing the loophole.
“Mr Maraga can’t purport to legislate while sitting at the bench, which is the work of legislators. I will use different avenues to ensure that he resigns because his suggestions on sexual offences will corrupt family values. It is unfortunate that he suggests the reducing the consensual age while (I hold that) it should be increased to 22 years,” Mr Kangata said.
The senator added that he would seek the attention of the Building Bridges Initiative to change clauses in the constitution that judges “abuse” to make laws while in the office and to give those powers exclusively to Parliament.
Mr Kang’ata also chided Mr Maraga for citing Fida in his argument, interpreting the move as judicial capture by non-governmental organisations, which he claimed promote western values.
“Mr Maraga’s validation of Fida’s western values is a testament of judicial capture by NGOs hence the recent pro-gay rulings. I, being a lawyer, will not sit and watch as the judges who should be giving the way mislead the country,” he said.
In his remarks last week, the CJ lauded the Court of Appeal for setting a precedence in one of the cases.
"Fida had noted the problematic Section 8 of the Sexual Offences Act, which criminalises sex among teenagers, and had proposed that the section be amended along the Romeo and Juliet right so as to reduce the number of teenage boys going to jail,” Mr Maraga said.