No longer free, because ignorance of the law is no defence

When Judith Wandera was arraigned in a Kisumu court on May 9, 2018 on allegations of defiling a minor, she pleaded guilty to having had sexual contact with the minor, but argued that the boy looked like an adult.

She said that the boy had dreadlocks when they met and so she could not tell his real age. He had even footed the bills of the beer they consumed the night before her arrest. The boy’s parents, however, told the court that their son was 16, and in Class Seven.
Ms Wandera was handed a 15-year jail term last May 24 after the court found her guilty of defilement and performing an indecent act on a minor, contrary to the Sexual Offences Act. She filed an appeal.

Elsewhere, Suleiman Muriungi is serving 10 years in jail for dating a 15-year-old schoolgirl.

On November 5, 2014, he left his workplace, a hotel in Karen, for his girlfriend’s home just nearby. Like a good boyfriend, he had brought his girlfriend potato chips and samosas. To him, this day was supposed to be a special one, as they were to spend it enjoying the delicacy and making plans about their future. They were in the middle of enjoying their delicacy when a knock at the door brought an end to their bliss.

It was the girl’s mother who had abruptly arrived after being tipped off by a neighbour that Muriungi had been spotted near her home. He has been separated from his family for almost four years as a result.

Chest problems

Muriungi — who had just come to Karen in August 18, 2013 — did not know that his girlfriend was in high school, set to join Form Three, but had been out of school for four months because of chest problems. Moreover, she was only 15 years old.

“I used to have a friend around their home and that is where we used to meet. However, on that day, I went to visit her at their home. I was arrested and taken to Karen Police Station for being in a relationship with a schoolgirl,” he says, adding, he was not aware that his girlfriend was a student.

He was later arraigned in court with a case to answer for being with a sick, school-going, under-age girl, with an intent to have her as a wife. His previous free life was suddenly replaced with one which involved shuttling between the court and Karen police station for two months.

“I denied the charges and later, it was directed that investigations be carried out, during which I was taken to Industrial Area Remand as investigations continued,” he says. He was locked up for 16 months.

A doctor’s report later revealed that indeed, the girl had sex with a man, but could not categorically determine if the man was Muriungi.

Even so, he was informed that he still had a case to answer for being in a relationship with an under-age girl, and his pleas that he did not know that she was a student, under-age and sick, fell on deaf ears. They said he should have probed his girlfriend first to know her well.

On December 7, 2017, judgment was delivered and Muriungi, 33, was charged with having a relationship with an under-age, without investigating to know more about her. He was handed a 10-year jail sentence with the option to appeal.

“I was charged with attempted defilement as she was below 18 years. She had a mature-looking body, so it was hard to tell if she was under-age,” says Muriungi, whose initial incarceration in Industrial Area medium prison ended up in Nairobi West Prison a week later.

A child protection report released on March 28, 2017 by ChildLine Kenya, a non-governmental organisation that runs a child abuse helpline, revealed that 33,929 cases of child abuse have been reported in the last 10 years in Kenya with Nairobi County having the highest number of reported cases of all forms of child abuse.

The report, which analysed cases reported from 2006 to 2016, said that of the total number of child abuses, 7,832 were sexual abuse, almost 20 per cent of the total.

Lawyer Cliff Ombeta explains that attempted defilement is trying to penetrate the private parts of an under-age using your own organ and one cannot use the ignorance of not knowing one’s age as an excuse as it is immaterial whether one knew the age of the girl before having intercourse with her, as the burden of proof lies on the man.

“It is the man’s duty to verify the age of the girl before engaging in any sexual intercourse. The burden of proof shifts to the man because he has to prove that he unsuccessfully did everything possible to ascertain the age of the girl beforehand,” Mr Ombeta says.

Fake identity card

The lawyer adds that the only excuse that the man can use is that he tried to prove the age but the girl lied to him about her age and even presented a fake identity card to prove otherwise.

He states that the sentence for such an act varies and can be between 10 and 20 years with the judgment depending on any of the following laws: The Children’s Act, Sexual Offences Act and the Penal Code.

“The sentence varies depending on how one defends himself, but should not be less than the minimum and also not even a day more than the maximum sentence.”

The Sexual Offences Act (2006) provides exhaustive definitions of child sexual abuse in Kenya, including sexual contact with unmarried girls before age 16 and boys before age 12, trafficking, defilement, forced marriage, and incest.

The Act criminalises any person, including a jurist accused of child trafficking or being involved in child sex tourism, child prostitution, or child pornography.

On the other hand, the Children’s Act, 2001, defines a child as anyone under the age of 18 years, and entitles children to protection from all forms of violence and abuse.

He mentions that the girl’s mother tried to drop the case, but was told it was not possible as it was already in court.

Relationship expert Jennifer Karina advises that before getting into a relationship with anyone, find out all you can about them, depending on the type of relationship you intend to have with them.

“Saying that you did not know someone’s age is naive. It is important to know whether the person you intend to date is a child or a grown up,” she says.

Ms Karina says that failing to carry out due diligence should be punished especially if it involves under-age persons as such relationships ruin minors’ lives.

“How do you engage intimately with someone you do not know? They deserve no mercy because they ruin the lives of the young girls.”

The Sexual Offences Act outlines penalties for child sexual abuse, including imprisonment and fines with no legal redress for complainants but Muriungi’s elder brother, Nuru Kithinji, is praying to God to ensure justice is done, maintaining that his brother did nothing wrong.

“He will be locked up for the next six years, that is, until August, 2024 for just being in a relationship with a girl. We are appealing to the government, if possible, to help release the boy as the charges are not true.”

He says that Muriungi left Meru in 2013 to Nairobi and was living with their married sister, but after she relocated to Kitale, the family lost touch with him. They had been in the dark about his whereabouts ever since, to the extent that they believed he had died.

It was not until Sunday, April 22, 2018 when the family was informed of the 33-year-old’s whereabouts by a source Kithinji was not willing to mention as the information was confidential. The source also informed them about prison open days.
They met him on April 26, 2018 for the first time since he was locked up.

“We have suffered a lot looking for Muriungi. Our mother went into depression because of this case. We are happy to have found him alive. This is our first meeting with him since 2013 when he came to Nairobi from Meru,” Mr Kithinji said.

***

I was raped, she consented: His account versus her claim

Shawn Murunga* sat on the edge of a plastic chair fondly playing with his daughter at Nairobi West Prison.

Born a few months after his dad had been locked up, the toddler had fun with her father, but as the clock ticked towards the end of the visiting day, Murunga, who is serving a 10-year-jail term after being charged with rape in September 2017 fought back his tears, knowing that it would take several months before meeting his family again.

He accuses his former lover of framing him by alleging that he raped her after a disagreement over money.

Murunga’s misfortunes started one Saturday after visiting his then girlfriend at the University of Nairobi’s hostel, Hall 20. What followed after the visit was a series of love making, which ended at 8pm in the evening.

He had met the former girlfriend towards 2012 when looking for models for a South African advert shoot--he was a filmmaker then--and they ended up dating for over 18 months.

“That fateful weekend, she told me she had a CAT on Tuesday the following week and wanted time to revision. She was having some of her friends over for revision, so I left her place at 8pm,” Murunga recalled.

The following day, he received a puzzling call from the university’s security section. They told him that his girlfriend had accused him of raping her.

Shocked at the news, a beleaguered Murunga tried calling his girlfriend to verify that this was not a prank. The calls went unanswered and so he decided to make himself available to the university security office.

“I found out that she had recorded a statement, claiming that a stranger went to her room and raped her,” Murunga said.

Murunga read malice in the charges, and claimed innocence, saying that the girl plotted to extort money from him.

EVIL PLOT

“One day after a production, I was handed a cheque, which I later handed over to my now ex-lover to carry as I was busy running some errands. I suspect the fat cheque prompted the girl to draw an evil plot to bring me down.”

After reporting to the campus security, he said he later voluntarily took himself to Kileleshwa Police Station, where he stayed for four days before being arraigned before a Nairobi law court.

“On the fourth day, while at Kileleshwa Police Station, the woman came with a female, who I think was the mother. They told me they wanted several millions so that they could withdraw the case, but since I could not raise the amount they we demanding, I was taken to Kibera Law Courts.”

Mr Murunga says that his ex-girlfriend appeared in court and testified that he was a stranger, although he had visited her 12 times in both Halls 6 and 20 at the university. Every time he visited, he used to record at the security office his ID number, the person he was going to see and the room number, keeping the tradition to pass through security check.

He says that a medical examination report indicated that there was sexual intercourse, but there was no sign of rape.

One day as his case was going on in court, he met one of the woman’s room mates, whom he knew as they used to go ‘clubbing’ together. She confided to him that his former girlfriend had indeed planned the trap for money. But when he thought that he had found someone to help his case, the woman refused to testify in court as she felt that she could also be charged for being an accomplice.

Legal experts, however, note that rape cases among couples or lovers are possible, but also difficult to verify since the act is done in privacy and without witnesses.

Rape is basically non-consensual sex and there are other ingredients within the law that further provide thresholds of a rape case, the experts said.

FORENSIC EVIDENCE

Ms Josephine Mong’are, Federation of Women Lawyers - Kenya (Fida-Kenya) chairperson, says that the fact that two people know one another does not disqualify rape. Rape occurs even among married couples, she says.

And it is even difficult to make a clear-cut conclusion on rape allegations about people who know each other and have been having sexual relations as opposed to when the two are strangers, she adds.

An advocate of the High Court, Mr Brian Ondego, says the nature of the crime takes place in private where there are no witnesses, therefore, the court has to rely on forensic evidence. Unfortunately, forensic evidence cannot show proof of consent.

“First, we have to look at whether consent was properly procured, and if there had been consensual intercourse before, then the complainant will need to explain why she withdrew consent on that particular day,” the expert said.

Sometimes consent could be given, then withdrawn during the act, and should the other party proceed with the act after consent is withdrawn, then he is guilty of rape as well, he noted.

“It is upon the accused to also prove to the court that there was consent. On the other hand, the complainant has to explain why consent wasn’t procured or how it was withdrawn after it had been procured,” Mr Ondego noted, adding that medical evidence, including DNA samples for either parties, under garments, hair, and bruises in private parts are also needed to prove the case.

While it is possible that a partner can trump rape charges to punish the other party, Mr Ondego says lying under oath is a criminal offence.

But why would someone bring up such a heinous crime against someone they once loved in exchange of money?

A relationship expert explains that such incidents point to a broken societal moral fabric and skewed individual values.

Ms Jennifer Karina, a relationship coach, notes that while it is true that rape can happen within a relationship, it becomes questionable when the complainant turns it into an extortion scheme.

“When someone commits such a heinous crime against you, you definitely need to report so that the person is punished by the law for hurting you, but to come up with false allegations against someone for malicious reasons is unacceptable,” she says.

The expert further advises that young people in a relationships need not only have friends who are their peers, but other people above their age who act as their mentors and grounders so as to provide them with counselling and mentorship.

“False accusations of that level absolutely ruin lives, and violate a very fundamental issue, which is trust, which later affects one’s level of engagement with other people in future relationships. Such a person is bound to become very wary, to the extent of staying away from intimacy in future,” the expert points out.

*Not his real name

-Additional reporting by Leopold Obi.