By Diane Doris
The Kenyan justice system has been ranked the world’s worst in dealing with womens’ rights, going by a recent judgment in which the Judge was rebuked for ‘mocking’ a rape victim. This was earned after a Malindi High Court judge, Justice Said Juma Chitembwe set aside a 20 year jail sentence that was handed to Martin Charo, 24 who was convicted after defiling a girl between December 2011 and January 2012 in Kilifi County. The ruling sparked interest and was mentioned during the Gender Justice Uncensored awards and bagged the Golden Bludgeon Award.
According to the Criminal Appeal 32 of 2015, Mr Charo allegedly defiled a fourteen year old girl between 2nd December 2011 and 3rd January 2012. The complainant, a 14 year old class six pupil on 2nd January was accompanied by her siblings to the beach and she later on left them to join Mr. Charo at his house. Her brother went to Mr. Charo’s house to ask her to leave but he claimed that she was not there. They then escaped and went to Charo’s parents’ home, where they stayed for 3 days and engaged in sexual intercourse after which the complainant went home. She notified her father of where she had been and was taken to the police station and later hospital. She admitted to knowing the appellant (Mr. Charo) as he lived close by and had gone to have sex with him.
The Sexual Offences Act Section 8 (1) (3) states that a person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years. Justice Chitembwe acknowledged the clause but still withdrew the 20-year jail term. He clearly stated that, “the complainant was behaving like a full grown lady who was engaging and enjoying sex with men”. The judge explained that it is unfair to have the appellant serve 20 years behind bars yet the minor was after sex from him. He also expressed that conviction should only occur if there is proof of defilement.
The judge’s ruling is contrary to the Sexual Offences Act which states that “A child below 18 years cannot give consent to sexual intercourse”. The Daily Nation reported that the Women’s Link Worldwide criticized the decision declaring that he set “a dangerous precedent assuming that girls who consent to sex before age 18 should not be afforded special protections provided to children and suggests that girls who do not report sexual violence immediately after the incident may be lying,”.
Justice Chitembwe’s ruling has brought to light issues of moral decadence and aversion of the law of the land. It threatens to sweep away gains made in law, like the Sexual Offences Act which have become the building block in protecting women and girls against predatory and repugnant behaviors.