Teen to undergo DNA to rule out defilement after father's bid to stop it flops

A parent’s bid to shield his teenage son from undergoing a DNA test to ascertain if he allegedly defiled another teen has flopped.

In a landmark judgment paving the way for minors to also be subjected to science to settle who is the father of a child born out of the crime, Justice John Onyiego said DNA tests may not be unconstitutional where defilement is at the heart of a dispute.

He also dismissed the man’s claim that it was discriminatory for the Director of Public Prosecutions to charge the 16-year-old with defilement while leaving out the 15-year-old girl. The man, codenamed FM, claimed that the two were not of the age to consent.

“Where appropriate, DNA can be done as a lawful procedure to unearth certain hidden issues. DNA tests are commonly ordered for in cases relating to succession (inheritance), child maintenance and sex-related offences.

"It is therefore not a general rule that DNA cannot be done in any event. In sexual-related offences it is common for courts to order for a DNA test to be done if the interest of justice demand,” said Justice Onyiego.

The DPP had decided to drop the defilement case after the girl claimed that she had been defiled by another person, an adult, and not the boy.

However, the magistrate’s court declined to terminate the case. Instead, it ordered that the boy and the child born should be subjected to a DNA test to verify if he was the father.

The teen was charged early this year with defilement, which he denied. During the hearing, the victim denied being sexually assaulted by him.

Aggrieved, his father moved to the High Court, arguing that the lower court had violated his son’s rights as a minor, adding that the court was interfering with the DPP’s decision to charge or terminate a case against an accused person.

He asked the court to find that charging one minor as a perpetrator while leaving out the other as the victim when they engage in sex is discriminatory. He also urged the court to find that it was untenable for a court to proceed with a case once withdrawn by the DPP.

FM asserted that all the witnesses, including the victim, exonerated his son. According to him, requiring the boy to undergo the test was degrading and oppressive. He also argued that DNA testing was a violation of his son’s right not to have his body intruded into and his right to dignity.

Despite being named as a party, the Attorney General never responded.

In the meantime, the DPP told the court that he decided to drop the charges in good faith after ascertaining that the teen was not the perpetrator.

According to him, it was in good faith, guided by public interest, the administration of justice and the need to prevent abuse of legal process.

While supporting FM’s case, the DPP also argued that the lower court’s decision was unconstitutional as it was interfering with the powers given to him by the Constitution.

After hearing the submissions, Justice Onyiego said that there was nothing discriminatory about the DPP deciding whom to charge and who would be the victim.

He said that he could not deal with the issue of whether it was right or wrong for the magistrate’s court to decline to close the case, as it could only be handled through an appeal.

“As to the prosecution of the subject (accused) being a minor while the victim with whom it is alleged the act of defilement was committed, the law is clear. It is upon the prosecution to determine whom to charge even when two persons commit the same offence.

"The prosecution chose to charge one suspect and treated the other suspect as a prosecution witness. There is no discrimination as the same is within the law,” said Onyiego.