Two years ago, Justice Said Chitembwe caused an outcry when he freed a man convicted of defiling a 13-year-old girl because she had behaved like an adult and enjoyed it.
Explaining why he freed Martin Charo, then 24, Justice Chitembwe said that where a child behaves like an adult and willingly sneaks into a man’s house for sex, the court should treat such a child as a grown-up.
In freeing Charo, the judge said it was important to distinguish between the law and morals.
He said it is the law that says a child below the age of 18 cannot consent to sex, and Section 8 (5) qualifies the provisions of Section 8 (1) to 8 (4), which penalise defilement.
He added that it can easily be concluded that it is immoral for one to have sex with a child under the age of 18.
“However, where the same child, who is protected by the law, opts to go into men’s houses for sex and then goes home, why should the court conclude that such a person was defiled? In my view, that cannot be defilement,” he said.
Justice Chitembwe said he was aware that the public would frown upon an adult who engages in sex with such a child, but Kenyans should not forget that times have changed, and that children now engage in sex at very young age.
The judgment was voted the world’s worst court decision for women’s rights by the Gender Justice Uncovered Awards, which recognises the best and worst court rulings on gender equality.
The verdict received the Golden Bludgeon Award by Women’s Link Worldwide, an international organisation of women lawyers.
Recently, the judge freed a man accused of impregnating a minor, saying it was possible that they were both underage when they had sex.Lodgers Tsofa Facho had been sentenced to 15 years in prison by a Malindi court for defiling a 17-year-old girl, contrary to Section 8(1) (4) of the Sexual Offences Act of 2006.
But Justice Chitembwe said that Facho’s age was not precisely determined during the trial, and that he, too, could have been under 18 in 2014.
The judge further said that the suspect, a former student at a youth polytechnic, had promised to marry the girl, and since they had a cordial relationship, it could not be concluded that he had lured her into sex. The judge noted that in most cases, the complainant does not complain, but is forced to by others, because she is under 18.
In Kapenguria, Justice Stephen Githinji freed Moses Munyan after the prosecution failed to tell the victim’s exact age. Munyan had been accused of defiling the girl on January 3, 2017, in West Pokot County.
The particulars of the offence in the main count said the victim was between 12 and 15 years old, but the alternative count indicated that she was 14.
In her evidence, the girl said she was 15, while her father said she was 14. The age assessment tabled in court showed that she was 15 years or below.
The judge said it is crucial for the prosecution to ascertain the age of a sexual offence victim since the age differentiates between the offences of rape and defilement, and the sentence which the offence should attract.
“Failure by the prosecution to do so is fatal to their case. In this case, the evidence suggests that the complainant consented to having sex with the appellant.
“If she was an adult, that is 18 years and above, consent would be an available defence to the appellant, and the offence would have been of rape,” he said.
