How kin turn sex crime into tool of vengeance

Mr Jimmy Paul (not his real name) has been fighting defilement charges levelled against him by his first uncle due to a land succession dispute.

Had a magistrate court not noticed the malice within the family, the 30-year-old man would have spent the rest of his life behind bars, according to the Act.

The court acquitted him of criminal charges of defiling an eight-year-old cousin.

It turned out that the girls’ family wanted to use the Act to elbow out Jimmy from the succession of a one-hectare plot.

Asked about the case, Jimmy said he was implicated in the criminal charges in June 25, 2014 by his uncle (complaint’s father) due to a protracted dispute involving inheritance of family land. The plot was left behind by his grandfather.

LAND DISPUTE

For a long time, the family had engaged in wrangles on whether Jimmy was entitled to a share of the land, considering that like his grandfather, his mother was dead.

During hearing of the case, a family member, who is also an uncle of Jimmy, let the cat out of the bag and revealed that the alleged sexual assault case was an extension of the land dispute.

And since Jimmy is an orphan, having lost his mother, who was a single parent, at the tender age of about five years, the father of the complainant wanted to get rid of him. He was the only child of his mother.

“We live in the same compound as a family, but there are grudges between Jimmy and the family of the complainant,” the man testified.

Before the defilement claim, Senior Principal Magistrate Phillip Mutua heard that the complainant’s father had threatened to fatally harm Jimmy using a machete after quarrelling over the land.

“My brother — the father of the complainant — has lived to deny the fact that Jimmy is a member of the family. The suspect lost his mother when he was a young boy,” the witness said.

“The complainant’s father had also vowed to ensure the accused person will rot in jail,” he said.

EVIDENCE

The dispute involves a parcel of land that Jimmy was given by his grandfather, but which his brother wants to disinherit him of, the witness told the court.

In his ruling, the court found the charges were not genuine and the complainant was not truthful in her evidence about the alleged incident.

The court noted the girl gave two different versions about the incident, making the court unable to believe her evidence.

At some point, the girl said she was defiled at the farm, but also said it happened in the suspect’s house.

High Court Advocate Wahome Gikonyo says abuse of the Act is on the rise and many men are getting entangled in trumped-up charges of sexual defilement claimed by their relatives because of land disputes.

He notes that in sexual offences, the lower courts tend to believe the evidence of the minor and her mother.

VICTIMS

According to him, the law seems to have already sealed the fate of defendants, as exemplified by a recent ruling of Kerugoya High Court Judge Lucy Gitari, who said that evidence of the complainant is enough to convict the alleged offender — a position that is legally backed by Section 124 of the Evidence Act.

That section of the law also exempts sexual offences from corroboration of evidence by independent witnesses provided that the court is convinced that the complainant’s evidence is credible.

“…this is a sexual offence and the court relies on the testimony of the complainant to convict, even in the absence of corroboration if the court believes the complainant,” Justice Gitari added.

A 60-year-old man sentenced to 30 years in prison by a magistrate’s court for sexually assaulting his 13-year-old grandson was freed after the High Court established that there was insufficient proof to convict the accused.

JKH from Ichamara in Mukurweini was framed by his sister-in-law due to a dispute involving family land.

The area assistant chief Mwangi Warui confirmed this when he said he had handled previous land disputes involving the family.

RESCUED

A day before his arrest on June 13, 2011, he had a heated argument with the woman and her six children.

A clinical officer, David Kabuga, who examined the complainant, testified that he found the complainant to be in perfectly good health.

Though Justice Jairus Ngaah failed to comment on the issue of the man being framed, he noted that the matter involved a protracted family dispute.

The court found insufficient evidence to warrant the man’s punishment by the lower court.

In Meru, a man was also escaped life sentence for trumped-up charges of defiling his seven-year-old niece.

In his defence, the man named SK stated under oath that he had been framed.

The reason for the fabrication of the charge was that the minor’s uncle wanted to take away a parcel of land owned by the mother of the suspect, it was claimed.

THREATS

The suspect said the uncle wished to have him incarcerated to ensure that he is able to take away their family land.

When his mother took the witness stand, she said the minor’s uncle had initially threatened her.

The court found the evidence tabled by the prosecution to be insufficient, adding that the man’s defence on issues of land dispute had not been taken keenly by the trial court.

According to Kirinyaga-based children’s rights activist, Sicily Wanjiru, greed, extortion and malice amongst family members make people accuse their relatives of committing sexual offences.

She says women use their teenage daughters to fix their husbands, brother-in-laws, grandfathers and other male relatives to take over property or settle personal scores.

“From my experience, families where the father is not sufficiently providing for the family the mother may use her young daughter to get rid of the man,” Ms Wanjiru says.

PAIN

Some men, she says, get arrested unaware of the allegations awaiting them ahead, and to their shock find that the charges levelled against them concern sexual assault.

Ms Wanjiru cites an instance where a 12-year-old girl said to have been defiled by her father confessed she had been coached by her mother to lie about the incident. The case later collapsed in court.

She says that cases where a man is accused of defiling his step-daughter tend to be genuine due to lack of a biological relationship.

“But women also use their daughters to fix the step-father, particularly if the marriage is troubled. The woman often unaware of the penalties provided for in the law and the anguish she would be subjecting the suspect to,” she says.