Questions judges grapple with in sentencing sexual offenders

Wednesday May 9 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  

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Franco Wasubu’s vernacular hit song – Ni mwana uriku jaji (What child judge?) has polarised opinion since it was released two years ago.

In the song, the musician questions the judge after being jailed for four years for having sex with a minor who, for all intents, was acting as an adult.

“What child judge knows how to kiss, how to order for beer, how to fix a date and keep it?” go the lyrics in Kikuyu. Was the musician encouraging abuse of children or highlighting the moral dilemma?

Yet this drama is being replayed every day in the courts as judges grapple with enforcing the Sexual Offences Act. 


The 2006 legislation stipulates that sexual intercourse with a child under 18 years old is defilement irrespective of whether or not there was consent. The offence carries a sentence of life imprisonment where a child below 11 years is involved, 20 years for children between 12 and 15 years and 15 years for abusing children between 16 and 18 years.

Criminalising sex, even among teenagers where one is slightly older than another, appears to ignore some social and cultural dimensions where children play among themselves. In some cultures, these are encouraged  as essential training for adulthood and marriage.

Faced with this, High Court judges have been at pains trying to balance between the rule of law and the social aspects especially when handling appeals from the magistrates’ courts.


“The appeal raises a disturbing issue whether the law comes in conflict with what transpires in society,” observed Justice Luka Kimaru, in one such case before him.

Judges are struggling with the question of “experiment,” among youth in their adolescent stage in life.

“You have a teenage boy and a teenage girl who say they are in love and are going to get married. In that atmosphere, they think and believe it is true that they are actually going to get married,” said Justice Kimaru during an interview.

“It is a social issue which we cannot address legally and we must address such through other ways,” said Justice Kimaru.

Part of the recommendations the judges have made, through National Committee on Criminal Justice Reforms (NCCJR), is the need to relook at the issue of sentencing in such cases. NCCJR was launched in January 2018 to spearhead a comprehensive reform of Kenya’s criminal justice system.


The NCCJR proposal mirrors those by judges in 2016, during their annual meeting in Mombasa, where they also called for a review of the sentencing under Sexual Offences Act.

The dilemma has been compounded by cases where girls in their testimony in court state they were not forced or lured into the “offence” and would still want to get married and live happily with the accused as her husband.

“The challenge the courts face is how to deal with a case where there is no victim. You question who the victim is and you find that the complainant is the parent but the girl is not complaining,” said Justice Kimaru.

Some parents, unable to stop their teenage daughters from early marriages, also resort to using the law with dire consequences befalling the suitors of their “protesting” daughters. In some instances, teenage mothers-to-be were condemned to single parenthood for the period of the jail term.


Confronted with one such case, Justice Said Chitembwe said evidence showed the two were already talking of getting married and the girl, 17, had committed to that by having sex several times with the man, 21. Her father sought police intervention when they found she was pregnant.

Justice John Mativo also acquitted a man, 21, saying the magistrate had failed to consider the girl’s testimony that they were living as husband and wife.

“It was a serious misdirection of the law and facts for the learned magistrate to conclude that the offence of defilement was automatic,” said Justice Mativo. The matter was also being addressed through elders before police arrested the man who had eloped with the girl twice.


And, in yet another relationship which had resulted in pregnancy, the girl’s mother had testified that she had removed her daughter from the boyfriend’s house several times, which Justice Chitembwe noted was manifestation the parents of the girl were aware of that relationship.

“In this age where young girls are maturing fast and engage in sex knowingly and being aware of consequences, it will be unfair to sentence the boyfriend to 15 years’ imprisonment yet the two parties were aware of what they were doing,” Justice Chitembwe said.

He said defilement should not be limited to age and penetration. “If those were to be taken as conclusive proof of defilement, then girls would freely engage in sex and then opt to report to police whenever they disagree with their boyfriend,” he said.