Court rejects ‘maslaha’, negotiated marriage bid to settle rape case
An attempt to resolve a rape case through a negotiated marriage and ‘maslaha’ has ultimately failed, with the Court of Appeal in Nairobi upholding a 30-year prison term for the offender.
What you need to know:
- Attempts to resolve a rape case through maslaha and a forced marriage have failed after the Court of Appeal upheld the conviction and sentence of Tariq Abduwahab for sexually assaulting his uncle’s domestic worker.
- The court ruled that medical evidence is not mandatory to prove rape where a complainant gives reliable and compelling testimony, upholding a conviction despite missing doctors and police witnesses.
An attempt to resolve a rape case through a negotiated marriage and ‘maslaha’ has ultimately failed, with the Court of Appeal in Nairobi upholding a 30-year prison term for the offender.
The three-judge bench found that the complainant’s account was enough to sustain the conviction, despite the prosecution failing to call the doctor who examined her or produce medical evidence. The case involved a man identified as Tariq Abduwahab and his uncle’s domestic worker, Ms NT.
“The evidence of the complainant was reliable, consistent and compelling. She is to be applauded for her courage and resilience to uphold her dignity and have her brutal rapist brought to book and held to account despite the community and systematic frustrations placed in her path to justice,” said the court.
The judges said the woman’s evidence was sufficient to sustain the 30-year conviction imposed by the magistrate court in 2020, finding that it “needed no additional corroborative evidence” to support the rape conviction. The sentence was upheld by the High Court in 2021 before the case escalated to the Court of Appeal.
The case began after Ms NT, then aged 19, reported that two men took her to a rented house in Bulla Afya, Mandera, on the night of September 26, 2019. She said it was around 8pm and one man restrained her while the convict, Tariq Abduwahab, raped her.
She told the trial court that the other man held her down, covered her mouth and threatened her, while Abduwahab removed her clothes and sexually assaulted her.
She said she did not consent and that the incident was witnessed by Abduwahab’s uncle and aunt. She added that Abduwahab raped her again on two other occasions, consequent to which she conceived.
The Court of Appeal said Ms NT identified both men in the house using a torch placed on a table, although the room itself was unlit. The judges heard that Abduwahab’s aunt arranged for Ms NT to sleep with him, while she said she did not agree.
Ms NT denied being Abduwahab’s wife and rejected a suggestion that she had agreed to withdraw the rape case and live with him as husband and wife.
The court noted that there were attempts to compromise Ms NT by way of Maslaha (a traditional dispute settlement system) and have her married to Abduwahab forcefully.
She was an Ethiopian of Borana origin, was working in Mandera and employed by Abduwahab's uncle. She was the sole witness for the prosecution.
The other witnesses for the prosecution, including the appellant’s uncle and aunt, who rescued the complainant and gave her clothes on the fateful night, did not attend despite repeated summonses.
Neither did investigating officer PC Kevin Wafula or Dr Ali of Elwak Sub-County Hospital, who examined NT. A warrant issued for Wafula was not executed by the officer in charge of police station at Elwak.
During re-examination, she said Abduwahab had destroyed her SIM card and that his aunt took her bag while planning a wedding between them without her knowledge.
The court found that the appellant and his relatives had interfered with the prosecution and tried to compromise the complainant through maslaha and forceful marriage.
The Court of Appeal noted that the High Court considered those efforts when upholding the 30-year sentence, alongside evidence that Abduwahab raped NT again and made her pregnant.
The trial magistrate convicted Abduwahab on December 3, 2020 and sentenced him to 30 years. His co-accused, who held the victim’s hands during the assault, was acquitted because there was no evidence that he touched NT’s genital organs.
Abduwahab appealed to the High Court, arguing that the conviction rested on uncorroborated evidence and lacked a medical report. Justice Abida Ali-Aroni dismissed the appeal on November 18, 2021.
Corroboration not mandatory
The High Court held that corroboration in sexual-offence cases was not mandatory where the court was satisfied that the complainant was telling the truth.
It also held that missing medical evidence did not make the conviction unsafe. It held that absence of medical examination to support the fact of rape is not decisive as the fact of rape can be proved by oral evidence of the victim or by circumstantial evidence.
The Court of Appeal confronted the same issue after Abduwahab argued that forensic testing, including DNA, should have been ordered and its absence left gaps in the case.
Prosecution counsel Njoki Keng’ara argued that the complainant’s truthful and credible evidence was sufficient under the Evidence Act, while medical examination was not decisive.
“The evidence of the complainant was reliable, consistent and compelling,” the appellate judges said dismissing the appeal and finding that the appellant was properly convicted and sentenced.
The judges rejected Abduwahab’s defence that the case had been fabricated against him, saying his denial did not displace the complainant’s evidence.
Abduwahab also challenged the 30-year sentence, arguing that he should have received the 15-year minimum under the Sexual Offences Act. The appellate court rejected that argument.
The judges said the 15-year minimum and life maximum had remained available throughout the case, leaving sentencing within the trial court’s prescribed range.
