In order to escape accountability for his crimes, the perpetrator does everything in his power to promote forgetting. If Secrecy fails, the perpetrator attacks the credibility of his victim. If he cannot silence her absolutely, he tries to make sure no one listens.[1]

1. Introduction

The law on Sexual offences in Kenya is governed by the Sexual offences Act, a legislation that was enacted in 2006 to delineate the acts that qualify as sexual offences and to establish ways of punishing offenders. Prior to the enactment of this act, sexual offences were governed by the Penal Code in which they were categorized as being under offences against morality.

Sexual offences leave a bad taste in the mouths of the victims and their close relatives. To some, unless properly counseled, they may leave permanent emotional scars. One such an offence is the offence of defilement.

Defilement is, as often regarded, the most outstanding offence that is committed against children who are below the age of eighteen years. Indeed, defilement is defined as an act which causes penetration with a child, [2]a penetration which may involve partial or complete insertion of the genital organs of a person into the genital organs of another,[3] and such a penetration may be with or without the consent of the minor. This penetration, which is criminal, attracts a minimum sentence of fifteen years.[4]

This offence is near-similar to the offence of causing or inciting a child to engage in sexual activity. With regards to this offence, it is an offence to intentionally cause or to incite a person under the age of 16 years to engage in sexual activity.[5]An example of inciting to sexual activity include such instances where, say, person A of 20 years begs his 15-year old girlfriend to strip for him. Person A is guilty of an offence whether the girlfriend declines or willingly consents. A more practical example is as was illustrated in the English case of DPP v B[6]  where the defendant invited a girl to give him ‘shiner’ (perform oral sex on him).Suffice it to note, this offence, just like the offence of defilement, creates no scope for a plea of consent. Criminal liability, in essence, is strict.

Despite the enactment of the Sexual Offences Act No. 3 of 2006 which enhanced the sentences for sexual offenders, Kenya has lately witnessed an upward surge in the number of reported cases of such offences as defilement against children.[7]It would have been expected that the introduction of harsh minimum sentences would be a deterrent factor but an antithesis of the same has taken course. The case of Martin Charo v Republic is a locus classicus on this front. This paper is a critique on the constitutionality of the judgment emanating from this case, with due consideration given to such thematic concerns as the  philosophy underlying the protection of children through the enacted legislation, criminal liability in defilement cases, jurisprudence emanating from South African Courts on defilement cases and the mistake in Justice Chitembwe’s judgment in the aforementioned case.

1.1 Background to the Martin Charo v Republic case

The appellant in the case had been charged with the offence of defilement contrary to Section 8(1) (3) of the Sexual Offences Act.[8] He is said to have intentionally and unlawfully caused penetration of his genital organ namely penis into the genital organ, namely vagina, of a girl aged 13 years on diverse dates between the 22nd December 2011 and 3rd January 2012.[9] 

The trial court, upon considering all the facts and evidence before it, found he appellant to be guilty and committed hi to a twenty-year jail term. This conviction and subsequent jail term formed the basis of the appellants appeal on the grounds that the charge sheet was defective, that section 210 of the Criminal Procedure Code[10] was not complied with; that a crucial witness was not summoned to testify, that the case was not proved beyond reasonable doubt; that the sentence meted against the appellant was excessive and that the P3 form was irregularly produced by a person who was not the one who filed it.[11]

The foregoing set of facts give a brief summary of the case before Justice Chitembwe for determination

 

 

1.2 Justice Chitembwe’s Determination

Upon considering the evidence before him, the learned judge did find that the main issue for determination was whether the appellant defiled the minor in question or not.[12]While rendering the judgment, the judge pronounced himself on a number of issues in rather attention-rousing terms. For instance, on whether consent should be a factor in determining cases of defilement, the judge stated thus:

 It is true that under the Sexual Offences Act, a child below 18 years cannot give consent to sexual intercourse. However where the child behaves like an adult and willingly sneaks into men’s houses for purposes of having sex, the court ought to treat such a child as a grown-up who knows what she is doing.[13]

In this regard, the judge appears to endorse the view that a victim’s sexual victory should be dug into in an effort to prove that she was likely to have consented  to sex and therefore if she had had sex in the past, she must have also consented to the appellant in the current case.[14]

On another issue, the judge had the following to say regarding whether the appellant had, and therefore ignored, the obligation of ascertaining the age of the complainant:

The offence of defilement should not be limited to age and penetration. If those were taken as conclusive proof of defilement, then young girls would freely engage in sex and then opt to report to the police whenever they disagree with their boyfriends…the appellant was not expected to inquire from several people about the age of the complainant…[15]

Further, on whether a person has the moral responsibility of not engaging in sexual activities with a minor, the judge pronounced himself thus:

It is the law that a child below the age of 18 years cannot consent to sex…it can be concluded that it is immoral for one to have sex with a child under 18 years. However, where the same child under 18 years 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.[16]

  In acquitting the appellant, the learned judge stated:

…PW1 behaved like an adult and engaged in sexual intercourse…I do find that the appeal is merited and is hereby allowed…[17]

The foregoing sentiments by the learned judge inform the urge to unearth the   underlying philosophy behind child protection through the various enacted pieces of legislation both domestically and at the international arena. Further it is also vital to understand the nature of liability attributed to the crime of defilement.

1.3The philosophy Underlying Child Protection against sexual offences

Tamar Ezer, in her article[18]notes that children are an anomaly in the liberal legal order. She contends that children defy the conventional view of rights as implying fully rational autonomous individuals who can exercise free choice and require freedom from governmental interference .In this regard, she concludes that the term ‘child’ connotes the existence of a relationship where one party to the relationship  is an ‘dependent incompetent’ who lacks fully developed rational capabilities.

In view of the foregoing, it appears then that the period of childhood is the phase in which every human being is more vulnerable due to the fact that physical and mental development at that stage is yet to be complete.[19]At this stage, the child therefore requires particular attention and protection.[20]   

Be it as it may, parents stand as the first line of protection for the children, then the community and lastly the state. In order for the state to ensure the child’s wellbeing, it is under obligation to set up a protection system for the child. [21]Such a protection system includes such mechanisms as enactment of legislations, extension of political and judicial goodwill, child-rights activism among other practices that can be deliberately carried out with a view to fighting child mistreatment, violence against children and any form of discrimination that may be meted to children by virtue of their age that would adversely affect the wellbeing of the children.[22]

Kenya, while responding to the need to protect children within her borders, has domesticated international instruments,[23] and has, at the same time enacted domestic legislations[24] that protect children and enhance their wellbeing. Further, the country’s constitution has a robust Bill of Rights which candidly provides for the protection of children in the following manner:

Every child has the right to be protected from abuse, neglect, harmful cultural practices, and all forms of violence, inhuman treatment and punishment, and hazardous or exploitative labor.[25]

It should be noted that the Constitution is the Supreme law of the land that is binding      upon all people and state organs.[26]Its primacy is as was explained by Justice Mohammed in State V Acheson[27] thus:

The constitution of a nation is not a statute like an Act of Parliament. It is a mirror reflecting the national soul, identification of ideas and aspirations of the nation. The spirit of the constitution must, therefore preside and permeate the process of judicial interpretation and judicial discretion.

The Children’s Act (2001) and the Sexual Offences Act (2006) also make provisions for the protection of children. The preambular paragraph of the Children’s Act, for instance states unequivocally thus this is an Act of Parliament to make provision for parental responsibility, fostering, adoption, custody, maintenance, guardianship, care and protection of children (emphasis mine); to make provision for the administration of children’s institutions; to give effect to the principles of the Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child.

 

The Sexual Offences Act (SOA), while seeking to protect children, makes express provisions for crimes against children, most notably the crime of defilement in rather explicit terms thus: A person who commits an act which causes penetration with a child is guilty of an offence termed defilement[28]

The foregoing sentiments underscore the necessity underlying the need to protect children in all spheres of their lives. Important to this discourse is the need to protect them against defilement, mostly orchestrated by adults who are keen on citing consent as a potent defense. It therefore becomes imperative to interrogate the nature of criminal liability that is attributed to offenders in defilement cases.

1.4Nature of Criminal Liability in Defilement Cases

Crimes are categorized as either imposing strict/absolute liability on the offenders or placing a requirement on the need to prove the element of mens rea on the part of the offender before conviction.

Suffice it to note, there is a presumption to the effect that mens rea is a vital element in every criminal offence, but such a presumption is rebuttable, depending on the phraseology of the statute that creates the offence or the subject matter, so properly addressed it.This position is as ably illustrated in the celebrated case of Abdu and Another V R where the court found that unless it is expressly provided for in statute or by implication, mens rea (guilty intention) as an ingredient of a crime, an accused person should not be found guilty of a criminal offence unless such guilt intention is proved. This view is further buttressed by s.9 (2) (3) of the Penal Code which appears to replace the mens rea elements of intention and motive in instances where such motive and intention

As noted above, in determining whether a statute imposes strict liability, attention needs to be paid to two issues. It is necessary to scrutinize the language of the statute and also to consider the behavior which the statute seeks to regulate. In short, both the content and context of the statute are relevant. There is nothing mysterious about these processes; nor are they unique to questions about strict liability. Rather, they refer to general canons of statutory interpretation, in the lexicon of which one might say that both a literal and a purposive approach needs to be adopted. As Lord Nicholls suggested in B (A Child) v DPP[29]:

The question, therefore, is whether, although not expressly negatived, the need for a mental element is negatived by necessary implication. 'Necessary implication' connotes an implication which is compellingly clear. Such an implication may be found in the language used, the nature of the offence, the mischief sought to be prevented and any other circumstances which may assist in determining what attention is properly to be attributed to Parliament when creating the offence.

1. How Courts from other jurisdictions have dealt with defilement cases

The Court of Appeal of the Republic of Botswana  in Ketlwaeletswe V The State,[30] had the task of determining a question of law on whether  the proper charge to be preferred in a case where a man had sexual intercourse with a young girl deemed incapable of consenting to the act was rape or defilement. The court, in finding that consent is no defense for defilers stated thus:

…s 147(1) of the Penal Code …any person who unlawfully and carnally knows any person under the age of 16 years is guilty of an offence…it is quite clear…lack of consent is not such an element in the definition of defilement…if she did consent thereto, the offence is defilement.

The Supreme Court of Zambia in Mwape v The People[31]  while underscoring the      vulnerability of children and the subsequent need to protect them against a sexually-insensitive society had the following to say:

The scourge of defilement continues unabated in spite of long terms of imprisonment laid down through minimum sentencing legislation. Policy makers should turn to socio-economic solutions to the problem …at the age of 13 and being a relation to a girl, the girl was vulnerable. Children are absolute no-go zones for sexual activity of any kind.

.

To illustrate the fact that the crime of defilement is a strict liability offence, The Supreme Court of Zambia in Chimfwembwe v The People[32]  stated thus:

To establish that the offence of defilement was committed, it must be shown that unlawful carnal knowledge of a child occurred at the instance of the accused. Unlawful carnal knowledge implies sexual intercourse outside the parameters of the law (emphasis mine).Further it is a material ingredient that the victim of the said sexual intercourse must be a person below the age of 16 years in keeping with the definition of a child proffered within the law.

The House of Lords in R v K [33] considered the applicability of strict liability to the provisions of s. 14 of the Sexual Offences Act 1956 (now replaced by s. 3 of the Sexual Offences Act 2003). The defendant, aged 26 at the time of the incident, was charged under s. 14 with the indecent assault of a girl aged 16. The complaint made by the schoolgirl was that she was indecently assaulted by K touching her private parts without her consent. K's case was that the girl told him that she was 16 and he had no reason to disbelieve her. She consented to all the sexual activity which occurred between them. The House of Lords, while quashing the conviction, concluded thus:   

where a defendant was charged with an indecent assault on a girl under the age of 16 contrary to s 14(1) of the 1956 Act, but the girl had in fact (although not in law) consented to the alleged assault, the prosecution was required to prove that the defendant had not honestly believed at the time of the incident that the girl was aged 16 or over. Such a conclusion was consistent with the constitutional principle that guilty knowledge was an essential ingredient of a statutory offence unless it was shown to be excluded by express words or necessary implication... If, however, it was shown that an underage victim had not in fact consented, and that the defendant had not genuinely believed that she had consented, any belief held by the defendant concerning her age was irrelevant, since the victim's age was only relevant to her capacity to consent...

From the sampled case law, jurisdictions world over are of the general view that those who commit crimes against children should never be let to go scot free. Further, there is also the general view that children are generally unable to consent on a number of issues including their involvement in sexual activities and they therefore require protection against such practices that are seen to be harmful to them.

1. The Mistake in Chitembwe’s Judgment

1. Can a child consent to sex?

   In Kenya the age of consent is 18 years. Accordingly, the Children’s Act defines a child as one below the age of 18 years.[34] This means that in our jurisdiction we recognize a child as a person who has not attained the age of 18 years cannot comprehend the full nature and consequences of sex.Thus such a child cannot have capacity to consent to any form of sexual relations. However, in Justice Chitembwe’s judgment, there seems to be a departure from this train of thought as established by the law as illustrated hereunder:Shockingly, the court puts emphasis on the fact that the child willfully took herself to the appellants house therefore she consented.According to the initial ruling, the prosecution proved as they ought to, that the appellant intentionally and unlawfully caused penetration of his genital organ into the genital organ of the girl aged 13 years. Consequently convicting the appellant and sentencing him to 20 years in prison. All this was by the book and the court applied the law to the letter. That much was not in dispute.Suffice it to note however, Kenyan courts have held repeatedly as precedent that it is immaterial whether the victim consented to the act or not.[35] Over and above, the Sexual Offences act at section 8 expressly disallows consent of a minor as a defense in such a scenario.[36] Children are unable to fully appreciate the nature of a sexual act, so naturally they are incapable of consent. This holds true world over as has been underscored in the discussion hitherto.The court acquitted the appellant. At summary, the appellant defiled a 13 year old girl. He KNEW she was thirteen. She in no way misrepresented herself to be above the age of majority (18) at least as revealed from the set of facts before the court. This is proven by his actions. According to the judgment, the appellant lied to the child’s brother of her whereabouts when he went to his premises to look for her. The appellant went further to raise alarm, so as to forcefully eject the victim’s brothers from his premises.

2. The child behaved like an adult… It is clear to me that although PW1 was a young lady aged 14 years; she was behaving like a full grown up woman who was already engaging and enjoying sex with men.What the court admitted and also implied in the ruling of Martin Charo v R, is that there are pedophiles, casually and repeatedly engaging in sexual relations with minors with absolutely no dread of the law and that some of these pedophiles may actually be let scot free by virtue of the supposed behavior of the child victim. This in essence therefore puts the victim on trial and not the pedophile.
3. Further, the court went ahead to protect such repeat offenders from the law. The Sexual Offences Act 2006 in the interest of justice and fairness provides misrepresentation as to age by the victim as a defense.[38] If the child conducted herself as an adult who fully comprehends what she is doing neither her nor the appellant would have felt the need to hide her from her siblings. The Sexual Offences Act unambiguously rejects in toto consent as a defense in defilement matters. As a society we should not condone the willingness of any adult person, who has capacity, to engage in any sexual relations with a child regardless of the disposition and willingness of the child who knows no better.
4. This statement goes to a deep extent of making bare the deteriorating state of affairs in our society. This paper contends that the whole question here should not be the pristine nature of the child; rather an interrogation into the effectiveness of our implementation system when it comes to defilement as emphasized in the 160 girls ruling. [37]
5. Justice Chitembwe went ahead to state in the judgment that;
6. Is it the child to blame? Shaming the child.The Protection against Domestic Violence Act 2015, which includes defilement in the definition of violence allows anyone, not just the victim to report the matter to the police. The court therefore ought to have made sure that there has been created for likely victims as the one in the current case, an environment conducive for reporting and trying the crime of defilement. However, such as ruling as Justice Chitembwe’s, only acts as a determent in the first place. In this regard, one would wonder why a child would report sexual assault by an adult knowing fully well that she/he may be shamed by the court and no justice would be served all together.
7. At this point it is important to ask the question of what willing behavior is in a child’s conduct in such a scenario as the current case. Further, we ought to ask what the empirical test is while disposing of one behavior as non –willing and another as such. The court has inadvertently opened a can of worms because one can never be completely sure of another’s intentions let alone a child’s especially in a sexual environment. The litmus test of right or wrong when dealing with children in such a sexual circumstance is, in the opinion of this paper, on the onus of the adult! Never the child!

1. Conclusion  
2.  
3.  
4. The ensuing discussion hereinabove has only served to demonstrate quite ably that the learned judge was by far and large misdirected in finding for the appellant. The judgment in question is not only defeatist but also lacking in substance as it goes against well-established principles of criminal law as well as the constitutionally guaranteed rights of children. It is therefore the opinion of this paper that Justice Chitembwe’s ruling is unconstitutional and should, without a shadow of doubt, be appealed against pronto.
5. Recommendations
6. Going forward, and having found that Justice Chitembwe’s ruling is both in bad taste and unconstitutional, the following if done will help cure the anomaly brought about by the judgment:

• Consistent training on how to handle child victims 

 

1.  
2. The government should consider investing in consistently training public officers and sensitizing them and the society generally on how to handle CHILD victims. It is this paper’s contention that children should be treated as such. The test of who is a child is not and has never been their behavior but rather the age of majority.

• Setting up of rehabilitation centers for child victims. 

 

1.  
2. The government, through the line ministries and departments should endeavor to set up more rehabilitation centers and other government institutions specifically geared towards child sexual assault victims that adequately address the physical, psychological and emotional treatment of the survivor to ensure that no general health repercussions extend into their adult life. This would ensure that as a society and a state we are nurturing healthy and wholesome citizens more so children as envisioned in our national values and national goals as contained in Vision 2030 and National Health Sector Strategic Plan II. Retrogressive thinking, like Justice Chitembwe’s would only serve scamper this whole process.

 

[1] See Andrew S. and Susan L. Woundedness from The Perspective of The Sinned Against (2001) p. 137

[2] See The Sexual Offences Act No. 3 of 2006 (SOA), s. 8(1)

[3] See SOA s.2

[4] See SOA s. 8

[5] See Smith and Hogan’s, Criminal Law, (13 eds. 2011) p.759

[6]  See B (a minor) v. DPP [2000] AC 428 (HL), [2000] 2 WLR 452, whose facts are that during a bus journey B, a boy aged 15, persistently requested a 13-year-old girl to perform oral sex. He was charged with inciting a girl under 14 to commit an act of gross indecency contrary to s. 1(1) of the Indecency with Children Act 1960. B claimed that he had honestly believed that the girl was over 14. Nonetheless, he altered his plea to guilty after the Youth Court justices ruled that the offence was one of strict liability in respect of the victim’s age, and that therefore his state of mind concerning her age was irrelevant.

[7] See for instance in<  www.standardmedia.co.ke/article/2000178551/6-000-cases-of-defilement-reported-in-2014> accessed on 18th June 2016  where it was reported that the year 2014 alone had a record of over 6000 defilement cases reported. This number is expected to rise in the year 2016.

[8] See Martin Charo v Republic [2016] eKLR

[9] Ibid

[10] This section provides that if at the close of the evidence in support of the charge, and after hearing such summing up, submission or argument as the prosecutor and the accused person or his advocate may wish to put forward, it appears to the court that a case is not made out against the accused person sufficiently to require him to make a defense, the court shall dismiss the case and shall forthwith acquit him.

[11] See supra n.5

[12] See supra n. 8

[13] Ibid at paragraph  

[14] See Catherine E. & Frances Q., Criminal Law (9th Ed. 2012) p.188

[15]

[16]

[17]

[18] See Tamar Ezer, ‘A Positive Right to Protection for Children’ (2004)

[19] See online at< www.humanium.org/en/fundamental-rights/protection/ > accessed on 12th June 2016

[20] Ibid

[21] See supra n. 15

[22] Ibid

[23] The country, through Art 2(5) and Art 2(6) of the Constitution of Kenya,2010 (CoK) has domesticated the general rules of international law and any treaty to which Kenya is party to and therefore made them part of the law of the country.

[24] Articles 94 and 95 of the CoK unequivocally spell out the legislative role of the houses of Parliament.

[25] See CoK at Art 53 (d)

[26]

[27] 1991 (20 SA 805)

[28] See SOA s. 8(1)

[29]  [2000] 2 WLR 452

[30] 2007 (2) BLR 715 (CA) where the victim was a girl under the age of 16 years.

[31] see [2012] ZMSC 76 which was an appeal  following a conviction  on the charge of defilement contrary to Section 138 of the Penal Code Chapter 87 of the Laws of Zambia.

[32] [2014] ZMSC 22

[33] [2001] UKHL 41, [2001] 3 All ER 897

[34] See   Section 2 of the Children Act which defines a child as a person under the age of 18 years.

[35] See for instance in CKW v Attorney General & another (2014) eKLR where the court found that defilement is an outlawed activity in Kenya and the purpose of this is to protect children in the country. Further, the court stated that even if a person has consensual sex with a minor, in which there was penetration, such a conduct cannot escape censure simply because it had been intimately undertaken in privacy.

[36] This section provides for among other things that it is a defense to a charge under the section if - 

(a) it is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence; and 

(b) The accused reasonably believed that the child was over the age of eighteen years.

[37] See Petition No. 8 of 2012 , High Court at Meru, C.K. (a child) & 11 others v. Commissioner of Police  &2 others [2012] eKLR where the High Court in Meru delivered a land mark constitutional decision where a group of young girls successfully challenged the Kenyan government on its inaction regarding sexual abuse of children ( defilement)

[38] See supra n.36