A decision by High Court judge Said Juma Chitembwe to free a man who had been convicted of defilement and jailed for 20 years has come back to haunt the judge, who is looking to climb up the ranks and become Kenya's third Chief Justice under the 2010 Constitution.
Justice Chitembwe was the first of 10 candidates to be interviewed for the position of Chief Justice, which fell vacant on January 12, 2021, with the retirement of David Kenani Maraga.
But the judge's move to overturn Martin Charo’s 20-year sentence nearly four years ago on account of the minor behaving like an adult became one of the key talking points in his date with the Judicial Service Commission (JSC) on Monday. His victim was 13.
Aside from a new Chief Justice, the JSC is also looking to replace another judge, Jackton Ojwang, who retired last year.
Mr Charo had said in his appeal that the minor's family was aware of the relationship and had not objected to it, something Justice Chitembwe took into consideration when ruling that the Kilifi resident "should not be condemned for the voluntary acts of the complainant".
But an adamant Justice Chitembwe stood his ground, insisting that he would still acquit Charo if given a chance to revisit the case.
In his quest to become Kenya's third Chief Justice under the 2010 Constitution, the judge argued that he would take a look at the legal system in relation to defilement cases.
"If you go to the prisons, there are fewer cases of robbery with violence than defilement. If we go to the law, then anyone who has sex with someone under the age of 18 is guilty. But how do you take a young 19-year-old to jail for 15 years, for having had a relationship with a 17-year-old girl? The number of magistrates who have called me to say 'thank you, you have freed us from the shackles of the Sexual Offences Act' is high," Justice Chitembwe said.
At least three JSC commissioners, Justice David Majanja, Chief Magistrate Evelyn Olwande and lawyer Macharia Njeru asked questions relating to Justice Chitembwe's 2017 judgment.
Justice Majanja questioned why the Martin Charo case seemed to contradict another decision by Justice Chitembwe in which he ruled that a minor could not be considered to be married under Islamic customs even if she gives consent.
In the case cited by Justice Majanja, Justice Chitembwe quashed the marriage while insisting that the girl's consent to marry could not be considered because she was a minor.
But Justice Chitembwe insisted that the two cases were different hence his decisions could not be considered to be a contradiction of each other.
He added that if he were to consider the Martin Charo case again today, he would deliver a similar judgment.
