It is barely two months since Kenya marked four years after the Constitution of Kenya, 2010 was promulgated. Parliament has to content with Article 261(1) of the Constitution that has mandated it to enact legislations stipulated in the fifth schedule of the Constitution. The schedule sets out the time frame within which Parliament must enact those legislations or risk bearing the Constitutional consequences in Articles 261(5) (6) and (7) – of being ordered by the High Court to enact legislation within a particular period, and upon failing to comply with the court’s order, of being dissolved by the President upon the advice of the Chief Justice.
Kenya has had to content with being in the spotlight both at international and domestic platforms for failing to enact legislations to meet its obligations under the treaties it has ratified. For instance, for more than one decade, the Committees on the Convention on the Elimination of All Forms of Discrimination against Women, and the International Covenant on the Civil and Political Rights have recommended that Kenya enact legislations which afford women the equal protection of law in marriage, and to effectively address domestic violence. At the domestic platform, for example, the Kenya National Commission on Human Rights has whilst carrying out Universal Periodic Review recommended that the Kenyan government gives priority to the enactment of these legislations. The government’s consistent and sequentially responses are that it is in the process of formulating that those laws.
Against this background, it is now a case of race to the bottom by Parliament as it seeks to beat the Constitutional deadlines within which they must enact laws, and also to avert Kenya’s scrutiny at international and domestic platforms for not enacting pertinent legislations. In the recent past, Parliament has enacted various legislations and debated a number of Bills but there is need to call for caution to ensure that the laws being enacted are comprehensive, practical, address the prevailing societal challenges and meet the needs of the populace. Most importantly, these legislations coalesce multiple stakeholders, including the citizens, to collaborate in effectively implementing them. This is critical given the current communal arguments being bandied by advocates and lobbyists that it is better to have a law however flawed it is, than none.
In this regard, the Sexual Offences Act, No 3 of 2006 provides a standard and perfect classic example on the need to exercise this caution – what seems like an innocuous provision can prove to be problematic.
The SOA was enacted on May 2, 2006 after spirited debates in Parliament that were peppered with comic comments, unfortunate misogyny remarks and poignant statements of support from MPs. The then Attorney General Amos Wako affirmed the SOA would combat acts that constitute sexual offences but which were not penalised in Kenya’s laws.
A cursory glance at the Parliamentary Hansard of May 2, 2006 shows that Parliament intended the SOA to be a far-reaching law that addresses all aspect of sexual crimes, but also that critical provisions of the Bill had to be amended to allay fears and accommodate the interests of the legislators. For instance, definition of acts that would constitute sexual harassment were amended following fears by the legislators that the definition in the Bill was too broad and would criminalise courtship. As a result, harassment from peers in workplace is not proscribed in the SOA rather what is proscribed is harassment by persons in authority at workplace or educational institutions.
At the onset, it is vital to note the SOA does not include certain acts that would constitute offences, which were occurring at the time of passage of the Act but are now on increase, as attested by organisations that offer legal aid and practitioners. Such acts include indecent exposure, grooming minors with a view to have sex with them, creating explicit sexual images of children for personal possession.
Equally, the definition of what constitutes indecent act in section 2(2) of SOA has resulted into interpretative challenges, as evident in the cases of M.B.O. v. Republic [2010] eKLR, Gideon Omondi Olucha v. Republic [2010] eKLR, and Abdulrahaman Kakana v. Republic [2010] eKLR. These are just but a few of such cases.
The legislators crafted the SOA to impose mandatory minimum sentences for offences within the Act to deter commission of sexual offences, and as a reaction to the perception that courts have been imposing lenient sentences thereby necessitating the need to ‘guide’ judicial discretion. Like the proverbial hole that one digs and falls into, some of the mandatory minimum sentences in the SOA have posed serious challenges to the point there are now calls for their review. Examples of such provisions are sections 8(3) that impose a sentence of a minimum term of 20 years imprisonment for defilement of a child between age of 12 and 15, and that of 8(4) which impose a minimum imprisonment term of 15 years for defiling of child between the age of 16 and 18 years. The SOA did not envisage a situation teenagers would engage in sex amongst themselves to at least have a provision on statutory rape, which would be ‘a lesser evil’ in the backdrop of vaudeville arguments that Kenya is a religious and moral nation therefore its laws and policies should reflect this. Therefore, teenagers engaging in ‘consensual sex’ have been charged under these aforementioned SOA provisions.
Often teenage boys have borne the brunt of section 8(4) by being charged with the offences of defiling their teenage ‘girlfriends’. Unfortunately, this has fuelled public perception that the SOA is not gender neutral. This was the scenario that the court was faced in with in the case of C.K vs The Attorney General & Another, H.C at Nakuru [2014]e KLR, wherein the petitioner, a 16 year-old boy challenged the validity of Sections 8(1) and 11(1) of the SOA to the extent they criminalise the consensual between teenagers, and averred that the SOA discriminate against the boy child. Justice Fred Ochieng noted that the petitioner had not filed a complaint against the complainant for defiling him. The Judge affirmed that the SOA was gender neutral and rightly held that in cases of ‘consensual’ sex amongst children, there is need to consider appropriate and desirable measures, which are proportionate to the circumstances of the children and the offence, without resorting to criminal proceedings. The Judge recommended that research should be done by child development experts to guide the courts in future cases of similar nature.
By contrast, section (8)(5) of the SOA affords an adult a defence that the accused person was deceived by the defiled child to be an adult, and the accused person believed that the child was an adult at the time of committing the offence of defilement.
In the face of C.K case and the problematic nature of ‘consensual’ sex amongst teenagers especially against the background of SOA’s sections 8(3) and (4), it would have been expected that these would provide one signpost for constructive public debates on the provisions in the Reproductive Health Care Bill, 2014 touching on sex amongst teenagers. But this was not the case, instead a majority of legislators joined the public outcry that the Bill would corrupt the young, without empirical evidence from child development experts. This public psyche sets a dangerous platform, like in the past, for Parliament to pass the Bill that does not reflect the social realities and to address existing problematic laws. In this case, sections 8(3) and (4) of SOA whose application in relation to children having ‘consensual’ sex would be charged for committing the offence of defilement. Such children’s education would be affected as they miss school while attending court, and are likely to engender a negative attitude towards sex while going through the perplexing criminal process, and being subjected to stigma and ridicule by peers.
Generally, the problem of mandatory minimum sentences is that they are likely to result into travesty of justice where circumstances of the case and the punishment of the offences are so disproportionate. Notwithstanding this, there are instances where the courts have in a derided manner imposed sentences that are below the mandatory minimum sentences as though to wrest back judicial discretion they relished. This was the case in Baishe Ali Mohammed vs Republic, Criminal Appeal No. 83 of 2007 [2009] eKLR, that remains a blotted classic example of why there lurks distrust on judicial discretion. The appellate court set aside a sentence of seven years imprisonment by the lower court that found the appellant guilty of indecent act with child contrary to section 11(1) of the SOA. The court erroneously reasoned that given the mandatory minimum sentence of conviction of the offence is ten years imprisonment therefore, the seven years imprisonment was harsh and excessive!
Another section of the SOA that calls us into caution to ensure sound and practical legal draftsmanship is section 39(13) which stipulates the Registrar of the High Court shall maintain a register for convicted sexual offender, ‘and any person who has reasonable cause to so examine the register.’ The section does not set out the timeframe within which the register is to be established.
The Sexual Offences Regulations were formulated in 2008, two years after the Act’s enactment. These Rules inter-alia spell out the information that should be contained in the register, who may access the Register and how the information on the register is to be used. Section 7(3) of the Regulations require offenders listed on the register to notify the Registrar within 21 days when they change their registered addresses, leave jobs or get new ones, leave schools or enrol other new ones, and leave the court’s jurisdiction. In a classical manner of our weak legal draftmanship, there is no penalty for non-compliance to the Regulation by offenders, yet this would be critical in enabling the courts in conjunction with the Probation and Aftercare services to exercise supervision over offenders, especially those found to be dangerous by a court of law.
The challenge of victims/survivors and vulnerable witness being spirited away from the court jurisdiction remains problematic in respect of cases prosecuted under the SOA. The drafters naively presupposed that guardians of minors, who are complainants and charged under SOA, would automatically cooperate with the court to ensure the minors attend court proceedings so that cases are disposed with expeditiously to meet the ends of justice. But this has not been the case and as a result, they are instances where courts have been overzealous and issued extraordinary unlawful orders in a bid to sustain the spirit of the Act. This exemplified in Baraki Leakey Oyoo vs. Republic, High Court at Nakuru, Criminal Revision No 11 of 2013[2013] eKLR, where the complainant, 14 year old girl had disappeared from magistrate court’s jurisdiction and her mother was not cooperating with the prosecutors for her to attend court. The magistrate court issued orders detaining the mother and cancelled the bond of accused person so that the complainant is produced in court. The complainant’s mother and the accused person filed an application at the High Court in Nakuru for review of those orders. The Court found the orders were unlawful and quashed them.
The SOA has silver bullet in the form of Section 47A that provides the Chief Justice may make rules of court for the implementation of the Act. Particularly, legal practitioners and prosecutors perceive this section as a linchpin that would ensure the Act is implemented effectively, should the Chief Justice formulate cogent and all-encompassing rules, especially to address SOA’s gray areas, lacuna and challenges. It is only until recently that these rules, the Sexual Offences Rules of Court, 2014 were made and took effect by way of Legal Notice 101 of 2014 on 11th July 2014. From the wording of the Act it can be inferred that the Chief Justice is not bound to make the rules but rather has the discretion to do so. Therefore, there has been anticipation as to whether the rules would be formulated against the backdrop of the National Policy and Guidelines on the Administration of Sexual Offences Act developed by the Office of the Attorney General in 2011 and subsequently reviewed in 2013. These Policy and Guidelines generally spell out the functions and roles of agencies in the justice and governance sector, namely the Judiciary, Police, Prisons, Probation and Aftercare Services and Public Administration in ensuring the SOA is implemented an effective and coordinated manner. They specifically underscore that the Chief Justice ought to develop and review rules relating to the SOA. Therefore, it seemed inevitable that the Rules would have had to be made.
Overally, the Rules seek to maintain fidelity to philosophy of criminal justice system, and to underscore that the respect for the rights and the dignity of the survivors/victims is essential part to achieving justice. For example, in relation to the former, Section 8(3)(c) affords an accused person an opportunity to examine the demeanour of the victims and intermediaries testifying in court, Section 8(3)(d) affirms the benefit of an accused person to legal representation when a vulnerable witness is giving testimony, Section 9(c) stipulates that an accused person shall be notified in writing when application is made for the protection of a special witness and Section 7(12) an accused person has an opportunity to be heard regarding the appointment of intermediary.
In relation to the respect and right of dignity of survivor/victims, the Rules inter-alia, provide in Section 2(1) that a court may order or give directions to ensure the vulnerability of victims and vulnerable witnesses are recognised, and for the protection of privacy of victims. This provision aims at espousing the importance of meaningful participation of the victim/survivor in court process, aid them in regaining a sense of determination and assure them that what happened to them is being taken seriously.
Notwithstanding these provisions, the Rules cannot escape scrutiny over embarrassing typographical mistakes within it and the fact it fall short in addressing challenges in the implementation of the SOA. Such include first, the procedure of conducting voire dire (preliminary examination magistrate and judge to test the competence of a witness) and the effect of not complying with the procedure. The Rules simply stipulate that the court when making a special arrangement for a vulnerable witness it may consider whether the witness is capable of giving a complete and undistorted testimony without spelling out how the court is to ascertain that. This clarity in respect of voire dire is critical when considered in the context case law such as Yusuf Sabwami Opicho vs Republic [2009] eKLR where the appellant had been charged with the offence of causing grievous harm to his four year old son. The record from the trial read, “I have examined the child. He is intelligent, speaks well though shy. He is understandable and eloquent. He will testify without giving oath but through the court clerk”. The Court of Appeal noted that there was nothing in the record to show manner in which the child was examined or the questions asked of the child and his response thereto. The court held that this was in flagrant breach of the requirements of Section 19 of the Oaths and Statutory Declarations Act, and acquitted the appellant. Similarly, in the case of Anderson Kariuki Njeru v Republic [2013] eKLR, where the appellant had been convicted of defilement of a girl aged six. The High Court quashed the conviction and noted that although the magistrate had conducted voire dire she had failed to record her opinion.
Second is the issue of intermediary given that courts have different understanding of her/his roles. The SOA Rules do not elaborate on this. The SOA Rules merely make provision for an intermediary as one person at a given time, as opposed to more than one person to avert delays during court proceedings in scenarios where a vulnerable witness or an accused person objects to an appointment of an intermediary. Awkwardly, the Rules do not elaborate what happens in case an accused person objects to an intermediary appointment following application of Section 7(12) of the Rules that affords an accused person an opportunity to be heard in respect of appointment of an intermediary
Third is the issue of disposal of cases under SOA. Section 2(1) of the Rules stipulates the court may make orders or give directions for effective disposal of the cases but, glaringly, does not set timeframes, posing the potential risk of cases being prolonged, as currently is the case. This is greatly detrimental to the victims/survivors as they are traumatised by long court proceedings.
Given that the Rules were formulated after implementing the SOA Act for eight years during which practitioners highlighted the challenges, and under the ‘new’ Constitution that underscores expeditious dispensation of justice, it would have been expected that the Rules would be cogent, conclusive and responsive to these challenges.
In conclusion, these shortcomings in the SOA call for legislative intervention for amendment to the Act and for the generous and purposive Rules by the Chief Justice, otherwise the Act will remain in the annals of laws that present myriad challenges in its implementation and a perpetual poster child which attracts donors to hold conferences and workshops on its analysis, as to what are its shortcomings and what should be done. It is imperative that Parliament and Judiciary formulate laws and rules, respectively that are sound, practical and responsive.
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