Are elders right to mediate and negotiate compensation in defilement cases?
Local elders mediate and negotiate compensation for defilement victim's families.
What you need to know:
- The Constitution provides that every person has the right to access justice.
- The practice of handling defilement cases outside the formal judicial system deprives the victim of this right to access justice.
Dear Vivian,
I am a girls' rights champion in my community. I have recently noticed that cases of defilement are being addressed by local councils of elders who mediate and negotiate compensation for the victim's family. Is this practice acceptable under Kenyan law?
Amanda,
Malindi
Dear Amanda,
The Constitution provides that every person has the right to access justice. The practice of handling defilement cases outside the formal judicial system deprives the victim of this right to access justice.
Further, the Sexual Offences Act, specifically addresses the crime of defilement. The Act categorically defines defilement as an offence involving the penetration of a minor.
The Act also provides for mandatory minimum sentences for those convicted of defilement, ranging from 15 years to life imprisonment, depending on the age of the victim. Therefore, defilement and any other sexual offence is a criminal offence, and it must be prosecuted in a court of law.
In Kenya, customary law is recognised but is subject to the Constitution and other written laws. The Constitution provides that any law, including customary law, that is inconsistent with the Constitution is void to the extent of the inconsistency.
This means that while cultural practices and customary dispute resolution mechanisms are recognised, they cannot override statutory provisions or the Constitution. In this context, the handling of defilement cases by elders and the subsequent negotiation of compensation instead of pursuing criminal prosecution is unconstitutional and illegal.
To offer clarity on this issue, the courts have consistently held that defilement cases must be prosecuted in accordance with the law. They have also emphasised the need to strictly adhere to the Sexual Offences Act when dealing with defilement.
They have stated that allowing cultural or customary practices to resolve such cases would be a violation of the victim's rights and would undermine the legal framework established to protect children from sexual offences. In cases involving minors, the Department of Children’s Services should be involved to ensure that the child receives the necessary protection and support.
Therefore, consider educating the community about the legal implications of defilement and the rights of the victim. Community awareness programmes can help shift cultural perceptions and encourage victims to seek justice through the formal legal system.
Where necessary, legal action can be taken against elders who engage in the unlawful resolution of defilement cases. This may involve reporting them to the relevant authorities for obstructing justice or being accessories to the crime.
The resolution of defilement cases through councils of elders and compensation negotiations is not only legally impermissible but also morally reprehensible. It denies justice to the victims, perpetuates a culture of impunity, and undermines the rule of law.
It is important that all defilement cases are handled in accordance with the Constitution and the Sexual Offences Act, with perpetrators being held accountable through the formal legal system.
Vivian
The writer is an advocate of the High Court of Kenya and award-winning civil society lawyer ([email protected]).
