A Kenyan judge who freed a man convicted of defiling a minor has attracted the international spotlight, with his ruling being judged the worst in the world for the past year.
Justice Said Juma Chitembwe, ruled that the child appeared willing to have sex with the defendant.
He, therefore, on April 25 last year, set free Martin Charo, 24, who had been sentenced to 20 years in prison for having sex with a 13-year-old.
The verdict received the Golden Bludgeon (a court ruling with a negative effect on women and girls' lives) in Spain on Wednesday by Women’s Link Worldwide. It ranked the world's worst ruling for women’s rights in 2016 among 18 other cases.
The State has since appealed against the ruling.
Not screaming loud enough
An Italian court’s decision got the Silver Bludgeon for acquitting a man who raped his co-worker after ruling that the woman failed to prove her case for not screaming loud enough.
The Supreme Court of the Philippines’ decision to ban access to certain contraceptive methods, denying millions of women the right to freely choose what drugs to use, was voted third worst decision in the world.
'Behaving like an adult'
Under Kenya's Sexual Offences Act, a child below 18 years cannot give consent to sexual intercourse and therefore, all intimacy with children, willing or not, is defilement.
Despite the provisions of the law, judge Chitembwe overturned the 20-year jail term that a magistrate had given Charo and freed him.
“Where the child behaves like an adult and willingly sneaks into men’s houses for purposes of having sex, the court ought to treat such a child as a grown up who knows what she is doing,” the judge said.
He said his ruling emanated from the girl’s evidence.
“She went to the appellant’s place to have sex. She had known the appellant for about three years. She dodged her brothers after going to the beach and sneaked into the appellant’s house,” he argued.
Justice Chitembwe indicated that though “she appeared to him as a young lady aged 14 years,” she had behaved “like a full grown up woman who was already engaging and enjoying sex with men”.
“She seems not to have been complaining about the incident. She had only gone to the appellant’s house to have sex and go back home, only for her brothers to interfere. She opted to run to the appellant’s parents’ home, where they continued having sex. She then decided to go home. She told her father where she was,” said the judge, who concluded: “It would be unfair to have the appellant serve 20 years behind bars yet the girl was after sex.”
Women’s Link Worldwide criticised the decision, saying the judge set “a dangerous precedent assuming that girls who consent to sex before age 18 should not be afforded special protection and suggested that girls who do not report sexual violence immediately after the incident may be lying”.
“Despite the fact that the man is on trial, the court focuses on the child’s behaviour, saying she acted like an adult, characterising her behaviour as sneaky.”
Last year, Dr Luis Franceschi, the dean of the Strathmore Law School in Nairobi, picked Justice Chitembwe’s ruling as a subject of discussion in a commentary in the Nation.
Dr Franceschi said the judge 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.”
He added that the judge treated 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,” Dr Franceschi wrote.
Naim Bilal, the director for public affairs and communication at Kenya's judiciary, however, said the justice institution would need to see the report by the organisation before deciding whether to comment on it.
Justice Said Juma Chitembwe, who holds master’s degree from the University of Nairobi, is a distinguished legal mind but has found himself in the media for all the wrong reasons.
In December 2009, the judge was arrested by the anti-corruption agency's detectives in the coastal city of Mombasa over Ksh1.37 billion ($13.3 million) fraud and abuse of office claims. He was acquitted, three years later, along with former National Social Security Fund managing trustee Rachel Lumbasyo, when the court ruled that they had no case to answer.
Early this year, the judge barred the Interior minister Joseph Nkaissery and Inspector-General of Police Joseph Boinnet from deporting Italian tycoon Mario Mele to Rome, where he was wanted for tax evasion. He was later deported.
Mr Mele was among three Italians arrested during a joint anti-narcotics operation in Mombasa and Kwale early this year.
Justice Chitembwe practised for several years as an advocate of the High Court in Mombasa before joining the Judiciary as a judge in 2009.
He also served as company secretary for a chemical firm before joining the National Social Security Fund as corporation secretary.