Why judges want Kenya’s sexual offences law amended

Supreme Court Judge Justice Njoki Ndung'u

Question: As the architect of the Sexual Offences Act 2006, has the law had the impact you intended?

Ndung’u: I do believe the law has served Kenyans as it was intended, which was to address the prosecution and management of sexual offences comprehensively. In 2006, statistics were showing that a rape was being committed on average every half an hour but the legal framework could not comprehensively address the situation. The law was no deterrent at all. Medical treatment for victims was inadequate and the processes of obtaining a P3 form was humiliating such that most crimes remained unreported. Previously, the law failed to address critical issues such as males being victims of such crimes and the double victimisation of complainants during the judicial process. Ten years later, the Act has brought clarity on the number and definition of offences, introduced stricter sentencing guidelines including minimum sentencing and the management of medical treatment and court processes that protect the dignity of victims. The law also acknowledges the use of modern technology such as DNA. The publicity surrounding the parliamentary debate also raised public awareness, addressing the stigma associated with these crimes and has increased reporting and prosecution of the same.

Question: Judges have said the law is too punitive to young men and male minors. What is your take?

Ndung’u: Offenders under 18 are sentenced under the Borstal Institutions Act, which carries a maximum of three years. Minors do not get as harsh punishment as adults. Is the Penal Code too punitive for young men and male minors who commit other crimes? Why is it that sexual violence is different? Is it because the victims are largely female and the perpetrators male? Is this a basis for sympathy by those critics? Crimes against women and girls are crimes against citizens of the country. There are no bigger crimes or lesser crimes. There can be no double standard when it comes to the rule of of law. That would be a recipe for chaos and a breakdown of law and order. Criminals must face the law whatever their age, gender, race, tribe or class. Young people have been found culpable for crimes such as murder, manslaughter, robbery, theft and assault. They have been punished for it. Sexual Offences are not an exception. Yes, young men and minors are punished and serve prison terms when found guilty of sex crimes. And let us never forget women and female and male minors who are their victims and who live with the trauma of attack for the rest of their lives.

Question: What challenges, if any, are evident in sexual offences law?

Ndung’u: Cultural and gender biases exist even among police officers and judicial officers who handle the cases. On occasions, some of these law enforcement officials try to seek a way to ‘reconcile’ parties to the detriment of the victim and without due regard to the impact of releasing a criminal back into society without action on a crime committed. This is how repeat offenders are created and encouraged. It is called getting away with it. It works to protect perpetrators of sex crimes. The Sexual Offences Act provides that once crime is reported, it cannot be withdrawn easily as it could in the past. Only the Attorney General can recommend this. But there are still incidences involving corrupt police officers, State counsel and judicial officers who try and craft a way out for the perpetrator. There are many instances of acquittals in the face of real and proven evidence where some judicial officers misread the law or apply standards of proof that are outside of the law. Some of these actions are deliberate but others are mistakes that happen. Officers should apply the written law strictly and not read into the law extraneous criteria that is not included in the Act. More training ought to be done to ensure a greater understanding of the law, its context in this country and the removal of biases created by cultural and religious beliefs that still exist in the minds of some legal practitioners.

Question: There are suggestions that some sections of that law should be removed or changed. An example, lowering the number of sentence years. Are the proposed changes necessary?

Ndung’u: Minimum sentencing is an effective deterrent and prevents abuse of discretion by judicial officers. At the passing of the Sexual Offences Bill into law, there were concerns about this. Magistrates could give one-day sentences for rape of minors and other victims. Other serious offenders would get away with a mere fine. In other cases, the judicial officer would allow for settlement between the victim’s family and accused or reconcile them. The situation was really out of hand.- This was a big source of corruption within the judicial system. Minimum sentencing was deliberately introduced by Parliament to deal with the vice and it has been successful.

Question: Would you propose any changes based on experience in interpreting the law or should Kenya have even more harsh penalties to tame the vice?

Ndung’u: Not at this time. Key amendments were made in 2007 after consultations with key stakeholders including the police, office of the DPP and Judiciary. The implementation of the Act and its attendant rules and regulations is still on-going and should be completed before any comprehensive amendments, if any are proposed.

Question: Has the Sexual Offences law influenced developments elsewhere outside the country and what forums have you been invited to speak about it?

Ndung’u: Yes, I have been involved at the regional and international level sharing experiences on the Act.

Question: Sexual offences law is perceived to have targetted the male child and failed to address consensual sex, especially where the boy and the girl are minors. What is your comment about it?

Ndung’u:It is important for us to acknowledge that criminals exist at all ages and that there exit rapists and sexual predators who are minors. They must be dealt with in accordance with the law. The issue of consensual sex of minors is problematic but it does exist. Indeed a committee set up by the former CJ to look at this issue recommended that clear guidelines for judicial officers ought to be developed to deal with these cases. It cannot be done on an ad hoc basis as this is prone to abuse. The CJ’s rules ought to provide a framework for assessing and determining the circumstances, such as these. The former CJ did gazette some rules under the Act but for reasons that remain unclear, this is an area which the rules do not cover. I trust that the incoming CJ will reconvene the committee set up to do this and review the existing rules which have failed to address these concerns adequately.

Question: Critics say that unless we establish the causes of the many sexual crimes, the laws, however accurate or harsh, may not secure any security for our grandmothers, mothers, aunts, sisters, wives, sons, brothers and other male relatives. What is your comment?

Ndung’u: Criminal laws do not addresses causes of crime. They provide for stated offences and sanctions. There is no logical connection between the punishment of one crime and the prevention of another. There are a separate set of circumstances altogether. If my sister commits murder, why would I worry that her punishment for her specific crime will not prevent other murders and other crimes? That is not logical. Zero tolerance to all types of crime is the way forward. The issue of security and crime prevention is an important but separate undertaking that the National Government must make. The Sexual Offences Act in itself cannot be a panacea for this.

Question: If given another chance to amend the sexual offences law, what emerging areas in relation to sexual crimes would Judge Njoki include?

Ndung’u: The Act, as it stands, is fairly comprehensive and comparable to similar statutes in the UK and South Africa. What remains to be brought into effect is comprehensive subsidiary legislation such as the rules and regulations that guide courts, medical practitioners, prison authorities and after-care service. The task force on the Sexual Offences Act chaired by Justice (rtd) Effie Owour was tasked by the Act to do this and have this far completed a number of required documents. However, some of these remain untested while others require review. For example, the Chief Justices rules for judicial officers ought to be urgently reviewed to address some of the concerns that have been raised. The purpose of subsidiary legislation is to give meaning in detail to the parent Act. This must become the area of focus.

Question: In terms of 1-100 marks, what percentage would you give on effectiveness of Sexual Offences Act?

Ndung’u: I would put the effectiveness of the Act right now at 70 per cent. Certainly, it is acting as a deterrent and there is more public information and discourse on the issue of sexual violence, including its prevention, medical treatment and psycho socio management of victims in hospitals and courts. Reporting has gone up, as have convictions. However, more needs to be done. More than half of the crimes committed still remain unsolved. We still need the much touted national forensics laboratory to identify some of the more elusive culprits.