The tradition denying teenage girls justice
Religious leaders and Somali clan elders in Mandera on July 20, 2020. The group agreed to strengthen the infamous Maslah system and have the same practiced. The tradition has, however, been accused of denying victims of defilement justice, with some asking for its abolition. PHOTO | MANASE OTSIALO | NATION MEDIA
What you need to know:
Fifteen-year-old Amina Ali (not her real name) defiled in September last year and got pregnant, gave birth on May 20 this year.
As a survivor of sexual abuse, justice seems to be elusive as she is caught between ‘Maslah’ and the legal justice system.
The suspect, Hussein Maalim was arrested and charged at the Mandera Law Courts, he denied the charges.
‘Maslah’ is a Somali traditional dispute resolution mechanism which gives priority to compensation of the victim’s clan as opposed to punishment of the perpetrator.
Fifteen-year-old Amina Ali (not her real name) was defiled in September last year and got pregnant.
And on May 20 this year, she gave birth.
Amina’s ordeal is not an isolated one especially for girls from North Eastern parts of Kenya. As a survivor of sexual abuse, justice seems to be elusive as she is caught between ‘Maslah’ and the legal justice system.
‘Maslah’ system is a Somali traditional dispute resolution mechanism which gives priority to compensation of the victim’s clan as opposed to punishment of the perpetrator.
In January, the suspect, Hussein Maalim was arrested and charged at the Mandera Law Courts. He denied the charges.
SOMALI WEDDING
The prosecution, led by State Counsel Charles Mogaka has since been in pursuit of justice for young Amina to no success. The case before Mandera Senior Resident Magistrate Peter Wasike took an unprecedented turn on July 30, when the Director of Public Prosecutions informed the court that there were new developments.
Mr Patrick Onjoro, holding brief for Mr Mogaka, told the court that the accused had since married the plaintiff through a Somali cultural wedding.
The marriage was overseen by Sheikh Mohamed Maalim at Bula Nguvu in Mandera East as signed on the purported marriage certificate.
The accused reportedly paid a calf as bride price.
ABOLITION OF MASLAH
This dealt a blow to several women leaders who have been crusading for abolition of Maslah in Mandera.
“Dropping of a rape case just because elders had sat under a tree and decided that the matter should end and the same used by DPP shocked me. We need support from the DPP to end this retrogressive culture,” lamented Ms Fauzia Amin, a local activist.
Mr Mogoka cited section 87 (a) of Criminal Procedure Court (CPC) while advising for a withdrawal of the case which states that the prosecution may, with the consent of the court, withdraw prosecution of any person before judgment is pronounced.
The probation report recommended withdrawal of the case and release of the accused to go and fend for his family. It warned that if the case proceeded and the accused was convicted then the family would remain destitute.
Mr Wasike, the trial magistrate declined to allow withdrawal of the case on grounds that allowing the same was tantamount to sanctifying an illegality.
LAWFULLY MARRIED
“Allowing the application herein will be tantamount to sanctifying an illegality. A child under 18 years is incapable of being lawfully married,” ruled Mr Wasike.
The magistrate noted that it will be injustice to the minor who was allegedly defiled if he allowed the application.
“The complainant has no capacity to appreciate what is happening on herein and or even consent to the alleged marriage. Many years from now and when this girl is mature to understand the gravity of what happened, she will not forgive this court for perpetuating and legalizing an injustice done on her,” said Mr Wasike.
Mr Wasike said that the public interest has always been that children should be protected from early marriages, abuse, neglect, harmful cultural practices and from all forms violence and inhuman.
IMPREGNATE GIRLS
He warned that allowing the application by the DPP will send a wrong signal to the public that defilers can get away with it if they manage to impregnate girls and marry them off so long as there is an agreement between the families of the girl and the accused.
“This will erode the public confidence in Judiciary, which is the last part of call for children who are oppressed including victims of early marriage, sexual offences and cultural practices,” he said.
Mr Wasike opined that his court was not so blind to reach a decision that does not meet the interest of justice per circumstances noting even the current jurisprudence on sentencing more so in sexual offences.
The magistrate observed that the ongoing could be of interest to concerned authorities to take appropriate actions against the individuals and institutions that presided over the marriage of the minor.
Mr Wasike directed that the accused remains in custody after suspension of bond terms on July 30, for obvious reasons until the conclusion of the matter.
