May 24 2018, marked the beginning of a new milestone with a rather conversational and a very informative two-day colloquium for the Meru County Judges, Magistrates and other judicial officers.
The conversations on harnessing an effective and efficient judiciary in handling sexual and gender based violence (SGBV) matters had shifted to the county level, in this case; Meru County.
The Center for Rights Education and Awareness (CREAW) in collaboration with the Judiciary organized discussion to sensitize judges, magistrates and other judicial officers on Court decisions that have set precedents in determining SGBV cases with the theme: “Harnessing the emerging jurisprudence through best judicial practices, innovation and local remedies.” The judicial officers were keen to dissect the rampant cases of sexual violence against children in the county.
Speaking at the inaugural session of the colloquium in Meru, Justice Anne Ongijo noted the difficulty in handling cases where minors come into conflict with the law. She observed that when it comes to the criminal justice system in Kenya the courts are put in a predicament where there are not able to determine which of the minor to bring to book and as such; It is still a grey area that is currently been handled by putting both minors under protection and care through the children department or probation office.
“There is need to amend the Sexual Offences Act to effect that where a sexual offence has been committed between two minors, none of them should be charged in the court of law. It is a matter that should be dealt with in the community. Minors should be well educated on the dangers of premarital sex,” notes Justice Ongijo.
Justice Ongijo also delve into the infamous ruling issued by Judge Said Chitembwe who freed a 24 year old man convicted of defiling a minor. Chitembwe who served as the Malindi Court judge then, failed to convict the accused person, arguing that the minor behaved in a manner likely to suggest she was an adult.
“Such rulings sets bad precedents for our justice system and exposes minors to further violations,” she adds.
Under the Sexual Offences Act, a child below the age of 18 years cannot give consent to sexual intercourse and therefore, all intimacy with children, willing or not, is defilement.
Muthomi Thiankolu of Muthomi and Karanja Advocates however noted a landmark ruling by High Court in Meru where a group of young girls successfully challenged the government on its inaction regarding sexual violence against children.
“The case is commonly referred to as the “160 girls case.” The petitioners in this case were majorly girls who had been defiled on diverse dates by a teacher. When they reported the matter to police, their case was mismanaged; the police were not willing to record statements or do proper investigations,” narrated Thiankolu.
Thiankolu who was the lead advocate in the case say when the matter went before the High Court in Meru, the judge ruled in favour of the girls, ordering the police to conduct prompt and effective investigations into each girls’ cases as well as take measures to fulfill their constitutional duties to comply with human rights standards in all cases of defilement.
“This case made a legal history in Kenya and globally as it brought to light the plight that many survivors of sexual violence have to endure before perpetrators are finally brought to book. This is a classic case that depicts the importance of strategic litigation in the society,” says Thiankolu.
Over the past few months there has been a wave of storm of sexual violence in school majority to which are committed by teachers who are supposed to be the custodians of learners while in school “loco parentis”.
In 2017, the Teachers Service Commission (TSC) struck off 71 male teachers for misconduct. In 2016, 22 teachers who had sexual relations with their students were banned from ever teaching in Kenya while in 2015, another 126 teachers were deregistered.
In the wake of this, the Teachers Service Commission (TSC) said that principals would now be held accountable for the safety of learners in schools. But that is not enough; according to the teachers who spoke at this year’s annual head teachers conference in Mombasa, there is need for the installation of surveillance cameras in schools as well as the employment of former military officers to boost security and curb sexual violence in schools.
In the courtrooms however, judges and magistrates are concerned of the emerging incidences where teachers stand as sureties to colleagues who commit sexual offences. It is such that has opened the gates court petitions against TSC for the failure to provide safe school environments and thereby exposing learners to SGBV but also the risk of being infected with HIV/AIDS.
One such public interest litigations was one spearheaded by CREAW and litigated by John Chigiti of Chigiti and Chigiti Advocates. This case brought to light the plight of students in the hands of their amorous teachers. In this, TSC were ordered by the court to put in mechanism to prevent and effectively respond to G.B.V violations with the intent of protecting learners in school.
“TSC cannot shuffle paedophiles from one school to another, and finally, content itself with dismissals. It has to put in place an effective mechanism, whether through an inspectorate department within TSC or the Quality Assurance Department within the Ministry, to ensure that no-one with the propensity to abuse children is ever given the opportunity to do so. Dismissal, and even prosecution, while important, can never restore the children’s lost innocence,” read the judgment delivered by Justice Mumbi Ngugi in 2015.