Judging is a very delicate profession. I was told once that “Judging a person does not define who they are, it defines who you are.”
As a result of his or her job, a judge is exposed to both fair and unfair criticism. In last week’s piece, I made a few observations about Judge Chitembwe’s judgment of Martin Charo v. Republic, delivered in Malindi a few weeks ago.
The judicial function is a delicate, unpopular and necessary reality of modern-day life, and the Judiciary is the mechanic of society. It repairs the broken engines, those relationships that have gone sour and that will sooner rather than later, will make the machine collapse.
To pretend that the Judiciary is not important is to behave like those jua kali fundis who tie ropes to hold a broken exhaust, or those upcountry drivers who keep the car doors closed by holding them as they drive.
The machine will move, but just for a little while. The day it collapses, it will pull everyone and everything down with it.
A good judgment is where the judge interweaves reason, law and social context with the aim of dispensing justice. It considers and measures positive or negative social impact, as well as consequences.
In the case of Martin Charo v Republic, the learned judge opened a Pandora’s box to an array of unspeakable acts by mere children, among themselves and with adults.
He allowed the enjoyment of a sexual act by the “victim” as a valid defence by an accused person.
In this controversial decision, Justice Chitembwe tried a most difficult balance between the law and the dispensation of justice, and he may have fallen short on the legal side of the argument and its social consequences. His decision, no doubt, will always be controversial.
Sexual offences are by far the most frequent court matter nowadays in rural Kenya, and the punishment seems unbalanced. Defilement is a strict liability offence, where intention need not be proven.
Our social context always views girls as victims, even when both people involved are minors, and boys, who are usually on the wrong side, end up in jail.
The judge was seemingly aware of this scenario and the consequent disproportionate punishment in those situations. There is a serious need for reform of the Sexual Offences Act in this regard.
Judge Chitembwe said:
“Children are not meant to enjoy sexual intercourse.Whenever they do, then that becomes the behaviour of an adult. Although the public will frown upon an adult who engages in sex with such a child, we should not forget that circumstances have changed. Young children engage in sex at very young age. This is not out of defilement. Conviction of a defiler should be based on actual circumstances and proof that the complainant was indeed defiled. This is more so when one considers the lengthy sentences imposed by the law for such an offence. It is unfair to send someone to 20 years imprisonment yet the complainant was enjoying the relationship.”
This statement shifted, rather inexplicably,the burden of proof from Charo, the appellant, to the young girl, the complainant. It begs the question: who was on trial in this matter?
There are times when age is not just a mere number. It could mean the difference between life imprisonment and a fifteen-year term in jail, the difference between life and death.
The Sexual Offences Act makes a deliberate distinction between the offence of defilement against a child below the age of eleven years and a similar offence against a child of between sixteen and eighteen years of age.
The drafters of the Act may have considered, quite relevantly, that there is a world of difference between the mental development of a child of eleven and a child of sixteen. The key to the lock is consent, for consent presupposes knowledge.
The Oxford Advanced Learner’s Dictionary, 7th Edition, defines “consent” as agreement or giving permission to do something. “Enjoyment” on the other hand is defined as “the pleasure that you get from something.”
This means that the law limits the capacity of children to give consent but it does not and cannot limit the ability of even children to experience pain or pleasure, whether licit or illicit.
So, eleven year-old children may not understand the nature and effect of their actions. Therefore they cannot be held legally responsible for what they do.
When it comes to sexuality and the development of our affective capacity, the law recognises this reality and provides that such children cannot give valid consent under the law.
This means that even if they agree to it and express a sense of enjoyment as if they had agreed to commit the act, the law will hold that they are incapable of agreeing to the act.
This applies not only in matters of sexual relations but also in contractual relations and in the political arena. For example, many youngsters speak about politics and participate in political rallies, but they cannot vote, and if they do, their vote is invalid.
Here, then, lies the danger of accepting Judge Chitembwe’s decision without qualification. His argument may be rephrased as follows: children are not meant to enjoy sexual intercourse, and if they do they validly consent to the sexual act.
Consent is a more important consideration than enjoyment.In a child, enjoyment does not imply consent.
The matter got more complicated when the judge decided to treat the crime of defilement in the same light as that of rape under the Act. The judgment takes for granted that the conduct of the girl (she behaved like an adult) is a decisive factor in proving the defence under Section 8(5) of the Sexual Offences Act, a reasonable belief that the child was over 18 or deception by the child regarding their age.
Consent or its absence is only a necessary element when an offence of rape is alleged. Not so for defilement. Under Section 8 of the Sexual Offences Act, neither the terms “consent” nor “enjoyment” appear, terms which the learned judge places so much weight on and regards as determinative of the matter.
In minors enjoyment is irrelevant, and it cannot be sustained as a reason for acquittal.
In spite of the circumstances of this case, and whatever it may have been that led Justice Chitembwe to write his judgment, anyone who defiles a minor will end up spending a good 20 years in jail.
So, headless boys and young men, before you find yourself in Charo’s shoes, get used to saying ‘no’. And know, once and for all, that a minor in Kenya is untouchable!
Dr Franceschi is the dean of Strathmore Law School. [email protected], Twitter: @lgfranceschi