Judges’ empathy for sexual violence offenders fails to address survivors

The High Court in Nairobi. Judges presiding the High Court want the Sexual Offences Act given a complete overhaul. Photo: Andrew Kilonzi.
The High Court in Nairobi. Judges presiding the High Court want the Sexual Offences Act given a complete overhaul. Photo: Andrew Kilonzi.

The Sexual Offences Act is set for amendment if the Bill initiated by Hon Florence Mutua, Member of National Assembly Busia County, sails through.

Though the Sexual Offences Act was hailed as landmark in 2006 when Njoki Ndung’u presented it before Parliament, so many loopholes have been detected and need to be sealed.

Mutua is calling for the implementation of the Act which is to be devolved to the counties with specific actions being undertaken.

The Busia County Women Representative, in her submission is raising the issue of lack of information over sexual offences. She is calling for national and county governments to undertake the responsibility of educating Kenyans on sexual offences.

“The Bill provides for national and county governments to promote public awareness on sexual offences through a comprehensive nation-wide education and information campaign.”

Radical changes

Those who are charged with ensuring that justice is served are calling for rather radical changes especially in the sentencing.

Judges converging at their annual conference in Mombasa brought out certain issues that they felt were making their work hard and needed to be removed.

The judges said the Sexual Offences Act required a total overhaul saying it had led to detention and jailing of many young boys for having relationships with young girls. It is noted that the situation gets dicey when a teenage girl behaves like an adult and tempts men or other boys, or when two young people ages between 16 and 18 have consensual sex but parents feel their daughter was forced into the act.

The judges also have an issue with the sentencing to life of offenders. The judges expressed displeasure with some sections of the law particularly those that oblige them to condemn young offenders to life or long periods in jail without exception.

Penalties

While the Sexual Offences indicates harsh penalties for rape and defilement, cases keep rising by the day. Proposals by the judges may not deter perpetrators but could lead to an increase in sexual violence cases.

Article 9 (2) of the Sexual Offences Act indicates: “A person who attempts to defile a child is liable upon conviction to imprisonment for a term of not less than ten years.”

It goes further in Article 10: “Any person who commits the offence of rape or defilement under this Act in association with another or others, or any person who, with common intention, is in the company of another or others who commit the offence of rape or defilement is guilty of an offence termed gang rape and is liable upon conviction to imprisonment for a term of not less 15 years but which may be enhanced to imprisonment for life.”

It is these custodial sentences that judges feel are too harsh not taking into consideration that someone who has raped is a danger to society and is most likely to commit the offence.

Yet the judges also have a point. According to Christine Ochieng, Executive Director Federation of Women Lawyers (FIDA) Kenya, the sentences especially in the case of minors who are boyfriend and girlfriend are actually posing a challenge.

Ochieng says where a girl is 16 years old and the boy is aged 17, parents tend to take advantage of the situation to settle old scores.

“For instance, a research by FIDA in Kakamega brings out a huge number of young boys below the age of 18 who have been jailed for 15 years each yet they had sex with their supposed girlfriends,” explains Ochieng. She notes: “We need to review the law and ensure that where a boy and a girl had sex, the sentence should be given due consideration.”

However, even despite this argument there are young boys who rape women and defile girls.

Attorney General Githu Muigai (right) with High Court Judges Festus Azangalala at tea break after the official opening of the annual Judges conference where they called for changes in the Sexual Offences Act. Photo: Andrew Kilonzi.

Attorney General Githu Muigai (right) with High Court Judges Festus Azangalala at tea break after the official opening of the annual Judges conference where they called for changes in the Sexual Offences Act. Photo: Andrew Kilonzi.

Incredible statistics

Even as the judges called for reduction of sentences meted out on rapists and other sexual offenders get leaner sentences, statistics from the Gender Violence Recovery Centre, a department of Nairobi Women’s Hospital indicates that things are going from bad to worse.

Statistics from Gender Violence Recovery Centre shows that the total number of SGBV cases reported in 2014-2015 were 3,247. The cases almost tripled from 2013-2014 to 2014-2015 as compared to the immediate year to year statistics.

A member of the Africa UNiTE Kenya Chapter that was formed by Ban Ki Moon to come together in the fight against sexual and gender based violence, the statistics from the GVRC are harrowing. These statistics indicate: “One of five women face sexual violence and 45 percent of women between 15 to 45 years have experienced physical or sexual violence in Kenya. Notably, a girl is raped every thirty minutes.”   Between 2001 and 2015 there were 26,277 cases of sexual violence as per the GVRC statistics.

Contradictions

Even as the judges are concerned about culprits being incarcerated for life, they have not taken into consideration that the survivors will live with lifelong injuries and trauma. They will never be able to wipe out or forget that they were raped or defiled. The judges seem not to believe that rape or defilement in itself is a life sentence for the victims and survivors.

The judges argue that the Sexual Offence s Act 2006 obliges them to condemn young offenders to life or periods of jail without exceptions. Court of Appeal judge Patrick Kiage argues: “Life imprisonment can be 15 years or 20 in prison and not for a convict to stay in jail till death.”

His colleague, Justice Erastus Githinji argues: “Law reforms are required in some custodian sentences. For instance sexual Offences Act’s minimum sentence is impractical. We cannot send a 17-year-old to life imprisonment for having an affair with a 15-year-old girl. We are destroying the society instead of rendering justice.”

The judge argues for changes in favour of perpetrators of sexual violence but what about the victims and survivors? Was the rape and defilement not a life sentence? This is the big question that the judges failed to address.