The Supreme Court will make a landmark judgment on whether women in abusive marriages and accused of killing their spouses could use the “battered woman syndrome defence” to demonstrate that their only means of escaping the abuse was to kill.
On Friday, the full seven-judge bench led by Chief Justice Martha Koome is scheduled to deliver the judgment that will have a bearing on numerous criminal cases, especially those concerning domestic and gender-based violence.
It is also likely to have an implication on murder cases where the death occurred due to actions precipitated by domestic violence suffered in the course of the strained relationship.
According to former Attorney General Prof Githu Muigai, who is one of the advocates in the petition, “the appeal will address the rights of victims of domestic violence, the proper and applicable legal principles in a self-defence plea, and the appropriate test for provocation raised in a battered women syndrome defence.”
The court is expected to determine two key issues, the first being “the applicability, standard of proof, burden of proof, and guiding principles of the doctrine of battered woman syndrome as a defence” in criminal cases in Kenya.
The second is “the applicable standard and burden of proof in a self-defense plea and the consequences of the same once the accused provides circumstantial evidence of their defence”.
Her case escalated to the Apex Court after the Court of Appeal found that the issue surrounding battered women syndrome was new in Kenya and that the same should be interrogated by the Supreme Court. The Court of Appeal found that Ms Kamande’s petition was a matter of general public importance.
The appellate bench comprising justices Hannah Okwengu, Mohammed Warsame and Jamila Mohammed said the determination transcended the circumstances of Ms Kamande’s case and had a bearing on the public interest.
“We have looked at the issues that have been raised by the applicant and note that the issue surrounding battered women syndrome is ideally raw in the country and has not had so many decisions on the same. We feel the same should be given a window for interrogation by the Supreme Court,” said the judges.
During the trial, Ms Kamande insisted that she acted in self-defence, having been attacked by Halim prior to her picking the knife.
Ruth Wanjiku Kamande at Milimani Law Court on July 19, 2018, where she was sentenced to death for the murder of her boyfriend.
Photo credit: EVANS HABIL| NMG
Her legal team, led by Prof Muigai, consistently contested the murder case by indicating she was suffering from domestic violence and she had apprehension of HIV/AIDS infection. They added that she had psychological trauma directly traceable to her personal relationship with the victim.
“The defence of provocation, self-control as conceptualized and enacted in law ideally proceeds from the old traditional stereotypical understanding of the human psychology that anger is instantaneous from a significant event that precipitates loss of self-control for the person and as such the offence of murder is placed distinctly from past abuse,” Prof Muigai said.
He further argued that the question of law raised by the applicant on the applicability of the battered women syndrome and the extent of its applicability in Kenya. This is in light of the Protection Against Domestic Violence Act, 2015, were issues were destined to continually engage the courts.
“Being a question of law, this matter has direct and immediate bearing on the proper conduct of the administration of justice as accused persons whose defence indicates domestic violence ought to be entitled to a lower or reduced charge,” he argued.
In the case of Ms Kamande, she explained that the reason for the attack was that on the morning of the incident, she had discovered in their bed a card with Halim’s name on it and the words “Aids Control Program”.
After demanding an explanation and threatening to expose him to their families and his close friends, she stated that the boyfriend attacked her, stating that he would rather kill her and himself than expose his status.
She sustained stab wounds to her hands, chest, stomach and legs. She stated that she managed to disarm the man and stabbed him several times. She then dropped the knife and rushed to the kitchen to fetch water with which to save his life.
Prof Muigai argued that there was no malice aforethought with the injuries. He said the convict stabbed her lover from a lying position with Halim seated on top of her and in a state of fear and panic. The defence argued she stabbed him numerous times in self-defence.
Prof Muigai stated that when a defence of self-defence is raised and especially in situations where the parties were in a relationship, like the instant case, it follows that the accused is supposed to be accorded a defence under the doctrine of battered woman syndrome and the test of loss of control.
He said both the High Court and the Court of Appeal did not address themselves to the doctrine, whose plea should be a conclusive defence that shifts the burden of proof to the prosecution to rebut the elements of the offence.
It was his case that when the prosecution fails to rebut all the elements of self-defence, it entitles the accused person to a conviction on the lesser charge of manslaughter.
