On rape and defilement, the law falls short

What you need to know:

  • Her face was severe, she was in pain, and she sees no way out unless we change the law. A law, she repeated, “that was drafted by people who are not parents.”
  • Bad laws usually lead to bad decisions, which in turn end up blurring the social conscience.
  • Justice Chitembwe set Charo at liberty, indicating that the 14-year-old girl was the one “who behaved like an adult".

“Whoever drafted the Sexual Offences Act of Kenya was not a parent”. These were the painful words I heard from a Magistrate in the Coast region.

Her face was severe, she was in pain, and she sees no way out unless we change the law. A law, she repeated, “that was drafted by people who are not parents.”

A disproportionate percentage of the cases she deals with every day are related to sexual offences, where adults abuse minors and minors defile and rape each other. A worrying situation that speaks of a broken family and societal system across rural Kenya.

The Sexual Offences Act is too unbalanced. Any sensible judicial officer finds himself or herself pushed in a corner, making sometimes unsound efforts to balance off a delicate situation and dispense justice. In this task, judges may unconsciously cause considerable damage to society.   

I had travelled to the Mombasa, Kilifi and Malindi Law Courts with a cheerful and diligent colleague, Douglas Gichuki. We met almost forty second-year law students who were doing their seven-week judicial attachment at the Coast.

The students’ job involved a wide array of tasks, from file registry to court clerking, researching and co-drafting simple decisions, as well as accompanying magistrates to prison visits. It was the students’ first reality check with our justice system.

It is usually said that every country has the leaders it deserves. If this saying applies to magistrates, then we have a reason to rejoice because the men and (mostly) women magistrates we met are selfless professionals with a level of dedication and sacrifice that surpasses their pay and the strict limits of their professional duty.

These men and women have worked around the country. Some have been on duty in the remotest corners of it, in places where their life and integrity are at constant risk, where their job clashes with millennia-old local customs.  

They have been separated from their families and are in constant, vivid and permanent touch with the most degrading crimes a man-turned-beast can commit.


We cannot turn a blind eye to corruption in the justice system. There are stations and officers who are letting Kenya and its justice system down every day. But those are now a minority, and without doubt, the ones I met are not in this lot.

These magistrates and registrars are grateful for the dignity, improvement in labour conditions and transparency the transformation of the Judiciary has brought to them.

The 2010 Constitution gave a radical turn to the way justice administration is organised in Kenya. It allocated duties clearly, separating investigation, prosecution and judgment.

Investigation is usually conducted by the police. Prosecution is under the Office of the Director of Public Prosecutions, and judgment is under the Judiciary, which is a passive receiver.

No matter how good a judge may be, his or her hands are tied by the quality of the lawyers who appear before him or her. Poor investigation and poor prosecution will lead to great injustices, and the judge cannot help but swallow the tears of his or her ideals, and keep moving.

Ultimately, the judiciary’s performance takes place on a stage set by Parliament, which passes the law, law schools which train lawyers, and the police who conduct investigations. If the law, or the lawyer or the prosecutor or the investigator do a mediocre job, the judgment will be equally mediocre.

Bad laws tie the hands of a judge and put him or her in a corner. Bad laws usually lead to bad decisions, which in turn end up blurring the social conscience.


Our moral fibre is breaking apart and our social conscience is steadily disintegrating. In this context, Judge Said Chitembwe’s judgment cannot pass unnoticed. This judgment has caused eyebrows to be raised, and they will continue to be raised for many years.

Judge Chitembwe’s judgment, issued at the High Court of Malindi, on April 25, 2016, decided a case where the circumstances were so lamentable and intricate that defilement, rape, consent, enjoyment and responsibility were all confused and intermingled.

Judge Chitembwe had to decide a case where Martin Charo, a 24-year-old man, intentionally and unlawfully defiled a girl aged 14 years on diverse occasions between December 2011 and January 2012 in Kilifi County. 

The trial court found this to be an offence of defilement contrary to section 8 (1) (3) of the Sexual Offences Act. Mr Charo was sentenced to a twenty-year prison term, upon which he appealed to the High Court leading to the judgment by Justice Chitembwe.

Justice Chitembwe set Mr Charo at liberty, indicating that the 14-year-old girl was the one “who behaved like an adult… The appellant was not expected to inquire from several people about the age of the complainant. The relationship continued for such a long time to the extent that age became a non-issue.”

It appears that the learned trial Judge treats the crime of defilement in the same light as that of rape under the Act. Indeed, consent or its absence, is only a necessary element when an offence of rape is alleged. Not so for defilement.


Under section 8 of the Sexual Offences Act, neither the terms “consent” nor “enjoyment” appear, terms which the learned judge placed so much weight on and regarded as determinative in the matter.

Certainly, the learned Judge was aware of many other considerations. For example, the fact that the girl was constantly paying visits to Charo and running after him.

Where were the girl’s father and mother while all this was going on? Perhaps in strict justice, the parents and Charo should have shared, in equal percentage, the prison term imposed on Charo.

In any case, the crux of the matter is that consent and enjoyment are not synonymous, they do not mean the same thing, as the reading of the judgment seems to imply.

In fact, the distinction here, which is best addressed by philosophers, lies in the distinction between human desire and the will. This is a subject we will address in a future piece.

Next week, with the indulgence of the reader, I will focus on the relevance of age in relation to offences of defilement and other sexual crimes, as well as some of the moral implications of this judgment.

The learned judge may have tried to rectify some of the deep inequalities contained in our poorly drafted Sexual Offences Act, but he may have, in so doing, exposed our minors to the untold dangers of a morally bankrupt society.

Dr Franceschi is the dean of Strathmore Law School. [email protected], Twitter: @lgfranceschi