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Innocent men suffer as sex offences law is used to settle personal scores

Thursday August 16 2018

Milimani Law Courts

Milimani Law Courts where the ODPP's Senior Principal Administrative Officer, Mr William Osoro, was charged with fraud. PHOTO | FILE | NATION MEDIA GROUP  

JOSEPH WANGUI
By JOSEPH WANGUI
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The increasing number of cases in which men have been falsely accused of defilement is putting the Sexual Offences Act on the spotlight with calls for reforms.

Investigations by the Nation show that last year, some 6,458 sexual offenders were charged in courts across the country.

Many of these cases were based on false allegations as a result of differences between the parents of the minors and the men who were accused.

One of the cases involved a 68-year-old retired agricultural extension officer in Tetu, Nyeri, identified as J.I.D.

LAND DISPUTE

He was arraigned in court after his neighbour claimed he had defiled minors aged three and nine.

It, however, turned out that the woman implicated him because of a land dispute. The man had also punished the girls after he caught them picking avocado fruits from his farm.

The grandmother coached the minors to claim that they had been sexually assaulted by J.I.D. who was arrested and charged in court.

WITNESSES

He risked spending the rest of his life in jail as the penalty for the offence but Nyeri Chief Magistrate Wendy Kagendo acquitted him after taking note of the minors’ mischief and that of their grandmother.

“There was a grudge between the minors’ grandmother and the accused person. It would appear that the grudge is what motivated the grandmother to lie and coach the children to tell lies,” said Ms Kagendo while acquitting J.I.D.

She made the findings after hearing six prosecution witnesses.

“Children are, however, innocent and cannot maintain a consistent lie and that is why their story collapsed. Indeed, this was an unfortunate case which has dragged through the court system for over five years,” said the magistrate.

CONDEMNED

The man’s lawyer, in his submissions, told the court that the minors testified that they were beaten by the accused person for stealing his avocado fruits but were not sexually assaulted.

They denounced their grandmother’s evidence that the accused undressed them and took them to his bed and molested them.

In Nanyuki, an artisan condemned to life imprisonment for defiling his 15-year-old daughter was released after convincing the court that the allegation was false.

He was implicated by his sister-in-law who was opposed to his marriage, he said.

It was alleged that he had been defiling the minor for eight years.

THREATENED

The minor’s mother learnt about the defilement from her sister. She reported to police leading to the arrest and prosecution of her husband.

But it turned out the sister, identified in court papers as Esther, was opposed to their marriage from the very beginning.

“Esther did not want me to marry her sister and even threatened to incite her brothers to beat me up if we did not separate,’’ the accused said.

In January 2011 his wife with whom he was living in Nairobi left their house following a disagreement over a text message he is said to have received from another woman. She travelled to Nanyuki and left their daughter with the man.

ACCUSED

Esther, who also lived in Nairobi, took advantage of the situation to falsely accuse him of defilement.

Testifying in court, his wife said: “My sister took up this matter. She has differed with the accused since I got married. She is the one who reported the defilement to me. True, there was a time she wanted me and the accused to separate."

The man was saved from jail by Justice Jairus Ngaah following a finding that the imprisonment was a miscarriage of justice.

A bishop at a church in Endarasha, Nyeri County, is another victim of false accusations. He was acquitted of defilement charges by a Nyeri magistrate’s court.

EVIL SPIRITS

He was accused of defiling an 11-year-old girl, a daughter of one of his church followers. He said he was fixed by the minor’s family after “delivering her from demon attacks".

“She was brought to my church by her parents for special prayers because she had been attacked by evil spirits,” said the bishop.

“I prayed for her and she got healed. Her parents decided that she should live at my home due to stigma at their home village which is about 10 kilometres away,” he told the court.

The girl lived with the bishop’s family for 14 days. But the court heard that the minor’s larger family was not happy about the spiritual healing.

14-YEAR-OLD

“Her uncle vowed to teach me a lesson on grounds that I embarrassed their family. The minor’s mother was being fought by her family for attending my church,” said the bishop.

In another case, a man, 21, was handed a 20-year jail term for marrying a 14-year-old girl, a Class Eight leaver. The girl said the marriage was consensual and that she had notified her parents and even her father met some elders.

The accused told the court that when the girl came to their home, he notified his parents who went to talk to the girl’s parents.

FREEDOM

"My parents approached the girl’s parents and they talked. Her father had called two elders. They met for the talks,” said the suspect.

While securing freedom for the accused person, his lawyer argued that it was not necessary to jail him considering the age difference between him and the girl.

“Bear in mind the purpose of sentencing and punishment policy which cannot be correctly said to be aimed at ruining the lives of young people,” pleaded the lawyer.

REHABILITATION

By the time, the accused person had already spent six years in prison when Justice John Mativo quashed the sentence and ruled that he did not have the intention to commit the offence.

“I have evaluated the evidence tendered by the prosecution and the accused person in the lower court and I am persuaded that the same does not disclose a guilty intent on the part of the suspect. He notified his parents and arrangements were made to notify the girl’s parents,” said Justice John Mativo.

And a 14-year-old boy committed to a rehabilitation institution for three years for defiling his six-year-old cousin was also freed after appeal. The court stated that the two families were not in good terms and there was no evidence to convict the boy.

INCEST

Lady Justice Rachel Ng’etich found the conviction was a miscarriage of justice as the prosecution failed to prove defilement. The judge also asked why a crucial witness in the case, who was present when the alleged incident occurred, was not called to testify.

The boy’s lawyer argued that witnesses were trying to suggest an element of incest but the trial magistrate made a finding of defilement.

He argued that in the offence of incest, the issue would have been relationship. He added that the requirements of defilement and incest, in sexual offence trials, differ greatly.

COACHED

A Murang’a County government psychologist and child counsellor said 10 per cent of girls taken to her on allegations of defilement had been coached to lie.

“I have confronted some girls alleged to have been sexually defiled to tell the truth and they revealed that they were coached by their mothers on what to say. Most victims allege to have been defiled by their close relatives like fathers, cousins and teachers,” said the health worker who is not authorised to speak to the media.

The officer says she knows the girls are lying due to inconsistencies in their statements.