Explainer: Why missing birth certificates are a major hurdle in defilement trials
The Mariakani Law Courts in Kilifi County on November 13, 2024.
What you need to know:
The absence of birth certificates in defilement cases complicates legal proceedings, delaying justice and undermining proper sentencing for offenders.
Missing birth certificates lead to age estimation challenges, affecting legal outcomes and sentencing severity for offenders.
Courts rely on evidence to correctly convict an accused person charged with defilement, and one key piece of evidence is the birth certificate.
Senior Principal Prosecutor Angela Fuchaka of the Mariakani Law Courts in Kilifi explains why this document is crucial for ensuring justice for a violated girl.
Angela states that the birth certificate is a fundamental basis for determining the appropriate legal punishments for defilement.
“A birth certificate serves as a vital piece of evidence that confirms a child's age, which is essential in legal proceedings concerning sexual crimes,” she remarks.
Unfortunately, in the region where she serves, many parents do not possess this essential document. Angela notes that when cases arrive in court, there is an expectation that the appropriate documentation should be presented. The absence of a birth certificate significantly complicates matters.
Without such documentation, legal representatives must navigate murky waters. “In cases where a birth certificate is lacking, as a prosecutor, I have to request that the court order the survivor to undergo an age assessment,” she explains.
This age assessment is carried out in public hospitals and must be conducted by a qualified dentist. The expert analysis involves examining a child's dental development to estimate their age.
However, this approximation presents its own challenges. The reports generated from these assessments provide age ranges rather than specific ages. “For instance, they might indicate that the survivor is aged between 13 and 14,” she points out, “but they cannot specify whether the child is exactly 13 or 12 years old.”
This uncertainty carries significant legal implications, as the Sexual Offences Act (2006) stipulates the severity of punishments for sexual offences based on specific ages.
According to this law, a convict who has defiled a child aged 11 years or younger faces a lifetime sentence. A criminal serves a minimum of 20 years in prison for defiling a child aged 12–15.
Meanwhile, a sexual offender who defiles a child aged 16–18 is liable for a jail term of no less than 15 years.
“Approximations allow offenders to evade the punishment they rightfully deserve,” Angela observes, highlighting the urgent need for reform in the documentation processes surrounding child welfare and legal protections.