Are justice and morality necessarily complementary?

Criminal Appeal No. 170 of 2015: Sheikh Ali Samoja vs. Republic

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By Jane Wachira

The Appellant, Sheikh Ali, challenged his conviction on the charge of child sex tourism, contrary to section 14(a), as read with 14(c) of the Sexual Offences Act.

The brief facts of the case were: that Sheikh Ali arranged and organised the travel of SHH – a child aged 15 years old – to Nairobi, to be taken to Lebanon for further studies. The accused was a Madrassa teacher of the child. He had met with the parents of the child SHH and explained them that SHH was among 3 students selected to travel to Lebanon for further studies, a proposal to which the parents agreed. While at Nairobi she was hosted at the house of one Sayyid Murtadha Murtadha, who defiled SHH.

At the close of the case, the accused was found to have a case to answer. In his defence, he made a sworn testimony in which he denied having organised the transport of the child to Nairobi for purposes of sexual exploitation. The trial magistrate found him guilty and convicted him of the offence of child sex tourism and sentenced him to serve 10 years in jail.

The grounds for the appeal were summarised as: a defective charge sheet, insufficiency of evidence, failure to prove mens rea of the offence, and failure of the trial Court to consider the defence raised by the appellant. As the appeal Court (High Court, Nakuru) was the Court of first appeal, it was under obligation to re-evaluate the prosecution evidence and draw its own conclusions.

Regarding the issue of a defective charge sheet, the appellant submitted that the charges framed were incoherent and incomprehensible and therefore rendered him unable to mount an effective defence. The judge found that although the facts were set out in a rather convoluted manner and could have been framed better, she did not find them incomprehensible to the accused, as the statute under which he was charged was clearly stated, as were the particulars of the offence. She further asserted that the fact that the particulars could have been framed in more clear terms did not render the charge defective.

The Court observed that Section 14 of the Sexual Offences Act makes it an offence for one to organise travel on behalf of any other person with the intention of facilitating the commission any sexual offence against a child, and that the target of this offence is the person who facilitates travel for third parties to Kenya or any other destination for the purpose of committing a sexual offence against a child.

It was the Court’s view that the appellant ought not to have been charged under Section 14 (Child Sex Tourism) but rather under Section 15(b) (Child Prostitution). Owing to public interest, however, the Court did not dismiss the charge outright.

Regarding insufficiency of evidence tendered by the prosecution, the Court found the allegation that the appellant organised for the travel of the complainant child (to Lebanon) for purposes of child sex tourism was not supported by evidence on record, as the appellant only organised for her travel to Nairobi. The judge observed that it was Sheikh Murtadha who was to organise her travel to Lebanon. Be that as it may, the Court ruled, it was clear that the appellant organised for travel to Nairobi as he gave her Sh500 as bus fare and wrote on a piece of paper the name and telephone number of her contact once she arrived in Nairobi.

On defilement, the appellate Court admitted the testimony of the complainant that while at the home of Sheikh Murtadha, he defiled her. The medical examiner PW5 corroborated her testimony. The learned judge also averred, “…I find no reason to disbelieve the child’s account of what happened to her. She had nothing to gain by claiming to have been defiled if no such incident actually occurred. On the contrary, the complainant, a Muslim girl, stood to lose her dignity and respect if the defilement was revealed…”

Section 124 of the Evidence Act reads:
“…Provided that, in a criminal case involving a sexual offence, the only evidence is that of the alleged victim of the offence, the Court shall receive the evidence of the victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the Court is satisfied that the alleged victim is telling the truth.”

In Common Law, the competence of children to give sworn evidence depended on the “sense and reason they entertain of danger and impiety (i.e. sinfulness or wickedness) of falsehood, which is what the learned judge considered, her evidence was also corroborated by the medical examiner an expert witness.

Regarding the question of mens rea, the Court found it clear that it was Sheikh Murtadha and not the appellant who defiled the complainant. This raised the question of why the appellant was then being charged in Court. The fundamental rule of criminal law is expressed in the maxim “actus non facit nisi mens sit rea” which translates to, “an offence can only be said to have been committed where a criminal act (actus reus) is accompanied by criminal intention (mens rea)”; without mens rea, the criminal offence cannot be deemed to amount to an offence in law.

It was the learned judge’s opinion that the correct charge ought to be child prostitution, and hence the underlying motive ought to have been that the appellant dispatched the complainant to Nairobi to provide a victim for Sheikh Murtadha to defile – or that he had reason to believe that she would be defiled. It also came to light that sometime after she had been defiled that Sheikh Murtadha gave the complainant a phone to speak to the appellant, who allegedly told her to stop being rude as she had been sent there “kumliwaza Murtadha”. It was also clear that after the appellant learnt that the complainant had been defiled, he took no action to remove the complainant from that house. He also did not report the incident to the police or to the parents of the girl. This failure by the appellant to take any action was taken by the lower Court as to impute existence of mens rea. Further, when the complainant returned to Nakuru and reported to the appellant that she had been defiled, he replied, “what is done is done”.

Kuliwaza, the appellate Court found, is Swahili for “ to console” as in the case of bereavement, and the term was taken to be ambiguous. Further, Sheikh Murtadha lived with his wife; the Court posed the question: would the appellant have sent a girl to the family for the purpose of defilement? The judge found that the fact that he had informed the parents of the complainant where he was taking the victim showed he acted in openness. Regarding his failure to take action, the evidence adduced showed that he actively participated in taking the child’s parents to Nairobi to search for the said Sheikh Murtadha, who had absconded to the Middle East. The fact that the appellant himself made no attempt to run belied the existence of mens rea on his side.

The issue of failing to take action on the part of appellant once he became aware of the defilement was a moral failing on his part. In his capacity as an Imam and religious teacher, he ought to have immediately removed the complainant from the home and reported the matter to relevant authorities. The Court, however, did not take this moral failing as to amount to criminal intent.

The law requires that a criminal charge be proved beyond reasonable doubt, and the prosecution was required to prove each element of the offence beyond reasonable doubt. The Court found that the actus reus of the offence had been proven beyond reasonable doubt. However, the intention to provide the girl to Sheikh Murtadha to defile her had not. The Court noted that the appellant could have exercised more care in establishing the true character of the person whom he was relying on to provide travel documents to the complainant, but that the moral lapses do not amount to mens rea.

Having analysed the facts and evidence adduced, the judge allowed the appeal to quash and ordered that the 10 year sentence be set aside.

Issues arising

Such statements as “the appellant told me to stop being rude because he had taken me to “kumliwaza huyo Murtadha” and “what is done is done” uttered by the appellant to the complainant, as well as his failure to take action after learning of the defilement may impute a guilty mind on his part. However, the openness and transparency exhibited in arranging for the travel of the complainant to Nairobi, in which he involved her parents, and the help he offered in looking for Sheikh Murtadha, as well as the fact that he did not attempt to run away impute his innocence.

“Beyond reasonable doubt” means that the standard that must be met by the prosecution’s evidence in a criminal prosecution is that no other logical explanation can be derived from the facts presented. This threshold was not achieved in the case herein. The concepts of justice and fairness insist on the impartial application of the law as derived from the principles of natural justice.

It was also the opinion of the judge that the correct charge ought to be child prostitution, not child sex tourism. At issue was the question; would re-opening the case under the latter charge bring out a different outcome? Regarding the issue of moral lapse on the part of the appellant, the Court found that it did not amount to criminal intent.

Knowing the facts as they are, would you agree or disagree with the decision of the appellate judge?

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