The Sexual Offences Act: Omissions And Ambiguities
Sexual offences leave a very bad taste in the mouths of the victims and of their close relatives. To some, unless properly counseled, they may leave permanent emotional scars. These scars may affect not only how they relate with members of the opposite sex, but also how they may react to ordinary life circumstances. They may at all times have an axe to grind with the society. But why not The rapists, defilers and those involved in sodomy are a product of the society.
Those of us who have come into contact with victims of sexual offences know very well how traumatizing the offences may be. Doctors, nurses, police officers, magistrates and counselors have tales to tell. The only victim we may not be able to tell if it?s traumatized and if so the effect of such trauma is an animal in cases of bestiality. How low can a man sink In this case a man means the male. I am tempted to describe him as an animal but I?ll be falsely accusing animals. In the animal kingdom, defilement does not exist except in only one animal; the stoat. However in the case of this animal the ?defilement ? is not meant for pleasure but for procreation and ensuring that one?s lineage does not become extinct.
It was against this background that the sexual offences Act, was mooted and eventually passed by parliament.
While the bill was still under debate in parliament, the said debate was carried out as if there was war between the male and the female. The bill was dismembered and some sections were introduced that at a glance appear to be good but on scrutiny, they don?t make sense at all.
Inspite of the flaws the Act was enacted with the notion, in my opinion, in that it?s better half a loaf than none at all.
I?ll endeavour to point out the short comings that may need to be rectified so as to make the Act workable.
The constitution of Kenya is the supreme law of the country and section 3 provides:-
?This constitution is the Constitution of the Republic of Kenya and shall have the force of law throughout Kenya and, subject to section 47, if any other law is inconsistent with this constitution, this constitution shall prevail and the other law shall, to the extent of the inconsistency, be void.?
Section 47 of the constitution is on alteration of the constitution.
Section 77 (4) of the constitution of Kenya provides:
No person shall be held to be guilty of a criminal offence on account of an act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for a criminal offence that is severer in degree or description than the maximum penalty that might have been imposed for that offence at the time when it was committed.?
Provision 3 of the First schedule made under section 48 of the Sexual Offences Act in my view is unconstitutional. It provides:
Any proceedings commenced under any written law or part thereof repeated by this Act shall, so far as practicable, be continued under this Act.?
In my view, the import of this provision is to have the sentence to be meted out be the one prescribed under the Sexual Offences Act, the then existing cases or offences committed before the repeals of the sections of other written laws, would have been tried under section 23 (3) [d] and (e) of Interpretation and General provisions Act, Cap 2 laws of Kenya. This section provides;-
23(3) ?Where a written law repeals in whole or in part another written law, then, unless a contrary intention appears,, the repeal shall not-
(e) affect an investigation, legal proceeding or remedy in respect of a right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealed written law had not been made.
This legal position was recently clearly stated in the case of Christopher Mwangangi Katumo v R  e KLR Court of Appeal at Nairobi. The brief facts were as follows:-
On September 18 2003, the appellant was arraigned before the Thika Chief Magistrate?s Court on a charge alleging one count of defilement of a girl under the age of 16 years and an alternative count of indecent assault on a female contrary to sections 145(1) and 144(1) of the Penal Code (Cap. 63) respectively. The particulars of the offence in respect of the first count stated that the offence had taken place ?on diverse dates between December, 2002 and August, 2003?.
As at December 2002, section 145(1) of the Penal Code provided that any person who unlawfully and carnally knew any girl under the age of fourteen years was guilty of a felony and was liable to imprisonment with hard labour for 14 years together with corporal punishment. However, by virtue of the Criminal Law (Amendment) Act 2003 (Act No. 5 of 2003), which came into force on 25th July, 2003, the section was amended to provide; ?Any person who unlawfully and carnally knows any girl under the age of sixteen years is guilty of a felony and is liable to imprisonment with hard labour for life.?
The appellant was tried and convicted on the charge of defilement and on March 7, 2005, a probation officer?s report was presented to the trial court. The court later placed the appellant on probation for three years.
On 15th May, 2005, Lesiit J issued a warrant of arrest against the appellant and on 6th April, 2005, he was brought before her. The record of the proceedings only showed that the Court had issued an ?order on revision? stated to be made under sections 362 and 364 of the Criminal Procedure Code (Cap. 75). By that order, the sentence of probation for three years imposed on the appellant was set aside and substituted with a sentence of imprisonment for 15 years.
The appellant appealed against the decision.
Under the Criminal Procedure Code section 364(2), it is provided that an order under that section should not be made to the prejudice of an accused person unless he has had an opportunity of being heard in his own defence. As he not been given an opportunity to address the High Court, the appellant had been prejudiced. From the evidence, it was clear that when the appellant had sexual intercourse with the young complainant, the law talked of ?a girl under the age of fourteen years? so that in framing the charge, it was incorrect to say that the appellant or any other person could be charged with defilement of a girl under the age of 16 years prior to 25th July, 2003. The charge as laid was therefore defective.
Appeal allowed, High Court?s order on revision set aside, appellant?s conviction and order of probation set aside, appellant to be released from prison.
Under the sexual offences Act, 2006, the word ?penetration? means the partial or complete insertion of the genital organs of a person into the organs of another person.
?Genital Organ? have been interpreted as follows:-
?includes the whole or part of made or female genital organs and for the purposes of this Act includes the anus;?
According to Collins Concise Dictionary ?penetrate? means;
- to find or force way into or through (something) piece,
- (of a man) to insert the penis- into the vagina of (a woman).
It?s my contention therefore that the definition given to the word penetration in the Sexual Offences Act, 2006 is wrong for it assumes that a female?s genitalia can penetrate that of a male which in reality is an impossibility.
Was this erroneous definition included so as to appease the male legislators who argued, and rightly so, that a male can also be raped This word need to be re-defined to only encompass What is possible. If a woman is charged with an offence of rape she?ll definitely be acquitted on a technicality for it will be so easy to prove that her genitalia did not at all penetrate that of her alleged victim.
The repealed section 144(3) of the penal code provided:-
Whoever, intending to insult the modesty of any woman or give, utters any word, makes any sound or gesture or exhibits any object, intending that the word or sound shall be heard, or that the gesture or object shall be seen, by the woman or girl, or intrudes upon the privacy of the woman or girl, is guilty of a misdemeanour and is liable to imprisonment for one year.
This section had played a very central role in checking some behavious that may not fit in the definition of indecent assault:
I recently tried a case where an accused person harassed a girl of 12 years by words whereby he constantly nagged her to have sexual intercourse with him until she had to run away from home. Since the Sexual Offences Act does not cater for such behaviour, I had no option but to acquit the accused inspite of his obnoxious conduct. The Sexual Offences Act ought to be amended to incorporate the provisions of Section 144(3) of the penal code, now repealed.
There are instances when the court may be confronted by some cases where both the ? victim? and the ?culprit? are more or less age mates. For instance a boy may be 18 or 19 years of age and the girl is 17 years. When such two have consensual sexual intercourse, in the eyes of the law this would be defilement. Since we are aware of this age as a very volatile age where teens are experimenting on their sexuality, the law ought to have appreciated this fact. I propose a sub-section to be inserted under section to cater for such circumstances.
Sodomy (buggery) is a sexual offence. However it was left out in the Sexual Offences Act for section 162 of the penal code was not repealed.
In the Sexual Offences Act, ?genital Organs? have been defined to include:
the whole or part of male or female genital organs and for the purposes of this Act includes the anus.
Sodomy (buggery) is a sexual offence ? sexual because it involves the male sexual organ (penis) and the anal orifice (which has been defined in the Act, as a sexual organ.)
Section 38 of the Sexual Offences Act states:-
Any person who makes false allegations against another person to the effect that the person has committed an offence under this Act is guilty of an offence and shall be liable to punishment equal to that for the offence complained of.
This section is very harsh and may be viewed as one that imposes fear even to a complainant with a genuine complaint. Knowing that most Kenyans including those who have gone to school do not understand legal issues, one may be persuaded to argue that a false allegation may include where an accused has been acquitted, erroneous as it may be.
The drafters ought to have left the offence under section 129 of the penal code where the penalty is upto 3 years imprisonment.
Some penalties under the Sexual Offences Act carry a life imprisonment penalty and this therefore means a false allegation touching on such an offence will attract a similar sentence.
On the face of it, it may appear harmless and aimed at discouraging false allegations. However, in the true sense it has the effect of scaring away an honest complainant.
From the foregoing highlights, it has emerged that the Sexual Offences Act came into force at the right time and it has tried to address the social problems manifested in sexual defiant acts. The only area which in my view was not addressed by the Act, is the cause. Without treating the cause, we shall continue to address the symptoms without much success. I will give a historical illustration to this argument.
We all know historically that Hitler caused the extermination of millions of Jews and many disabled Germans in an attempt to have a pure race.
Hitler was born of a Jewish father and a German mother. Since his father wanted him to excel academically, he was very harsh to the boy Hitler. Eventually due to this harshness, Hitler fell out of school.
When his mother died, the young Hitler was taken to live with his father?s sister who was hunchbacked. His aunt was very cruel to him and she would whistle while calling him, the way you would a dog.
The young Hitler therefore hated his father and aunt with passion.
When his father died. He sighed with relief.
Eventually he joined the army where he excelled. His hatred for his father and aunt led to his hatred for Jews and disabled persons whom he purposed to exterminate with a passion when he assumed power.
We may accuse him, try and convict him for these outrageous acts against humanity but without delving to find out the cause, we shall, and indeed we have, continued to sire breed and bring up many Hitlers.
Another bit of history If you read Genesis 16:11-12 the Holy Bible says:
- The angel of the Lord also said to her:-
?You are now with child and you will have a son. You shall name him Ishmael, For the Lord has heard of your misery.
- He will be a wild donkey of a man; his hand will be against him, and he will live in hostility towards all his brothers.?
The angel was talking to Hagar Abram?s (later Abraham) maid who was pregnant by him.
Due to the rejection of Ishmael, the Middle East has never had peace. It?s only in understanding this Biblical history that we can be able to understand at times sympathise with the combatant brothers in the middle East.
Likewise unless we establish the causes of the many Sexual Crimes, the Laws however accurate, however harsh may not secure any security for our grandmothers, mothers, aunts, sisters, wives, sons, brothers and other male relatives.
While we await the issue of causes to be addressed, the drafters of the Act need to go back to the drawing board and ensure the areas pointed out have been rectified with speed.
KIARIE WAWERU KIARIE Ag. SENIOR PRINCIPAL MAGISTRATE KIBERA LAW COURTS JULY 2007