Post by Sher on Aug 29, 2005 3:35:47 GMT -5
The move towards replacing the 75-year old Offences Against Morality chapter of the Law of Kenya with the more appropriate Sexual Offences Act is long overdue. But the Sexual Offences Bill published last week, is yet to be passed by Parliament to become law.
The Bill, drafted by a team of experts drawn from the AG’s office, human rights organisations and medical practitioners, and headed by Nominated MP Njoki Ndungu seeks to harmonise local legal mechanisms with modernity.
For instance it is the high time that the law seriously took into account influence as a key driving force into the ever-escalating sexual offences in the country. The comprehensive provision for special prosecution of rape cases where victims contract HIV/Aids and other fatal STDs into the yet to be debated Bill, cannot be gainsaid. In the past few decades, for example, that part of the colonial legislation has continued to attract criticism from the legal fraternity, gender equality and human rights activists among other stakeholders, for being lenient to sexual offenders.
This weakness has been attributed to the increased incidences of rape, defilement and other sexual offences against girls, women and other vulnerable groups.
Perhaps due to the recent overwhelming reports of frequent gory incidents of sexual violence against assailable groups, the authors of the Bill became overzealous, putting a lot of emphasis on punishing, rather than rehabilitating offenders. This, if not checked, could amount to throwing the baby with the bath water.
Social experts have expressed mixed concerns over the Bill with some lauding it on the basis that it will help to protect vulnerable groups if it is passed by Parliament.
Others feel the proposed law is biased against the offender.
A lawyer, Mr K. I. Laibuta says: "This proposal is too harsh for the offender. It only provides for minimum periods that a convicted offender can serve. Indeed in nearly in all sections, the Bill gives the court sufficient leeway to hand an offender up to a life sentence.
"The ‘not less than’ clause that precedes every ‘penal custodial
sentence’, should have been reserved for only a handful of specific very serious sexual offences."
And psychologist Mrs. Agnes Mbuli of Bridgehouse Consultants agrees with the lawyer.
Says Mbuli, " Long custodial sentences are likely to brake down the offender rather than reform him. After many years in jail many offenders come out hopeless and insecure. Many suffer mental breakdown while others may result to similar crime or even more heinous offences in protest."
Laibuta says the Bill "erroneously presumes that only long custodial sentences" can be deterrent against those who commit sex crimes.
On the contrary, he says, such penalties can be counterproductive,
expressing fear that sexual offenders might turn murderous if the crime attracts such heavy penalties.
"A victim who would otherwise survive might as well be killed by the offender, who is desperate to avoid getting identified in court for fear of being convicted and serving such long sentences," says the Laibuta and Associates lawyer.
Though the proposed law puts some emphasis on offender rehabilitation, Laibuta feels this is the direction the law should go rather than the tough penalties.
And the lawyer also observes that the Bill presupposes that most Kenyans are capable of exercising self-control based on its hard line approach.
Mbuli, on the other hand, observes that the law does not provide for the rehabilitation of sexual offence victims. "It is clear that the Bill presumes that every rape victim has access to sound healthcare and psychological services before or after reporting rape to police. This is not the situation in most cases though. Therefore the proposal should compel the state to take this responsibility just as it does for offenders," she observes.
She says the rise in sexual offences, like other crimes cannot be fully tackled through the courts alone. "Neither can offenders be deterred by stiff jail terms only," she says.
She points out that prevalence of crime in the country is mainly associated with crumbled moral, psychosocial and economic fabrics.
"External influences through modern technology are also partly to blame.
"In a few cases an offender is driven to crime by a mentally bent character. But in many instances, poverty, unemployment, peer pressure, abuse of drugs and unstable families are some of the driving forces that influence the youth to crime. Pornographic materials available on the Internet, television and other sources can enhance sexual perversion and eventual assault. These are some of the areas that should be looked into when solving the problems," she says.
The prosecution, in cases concerning marital rape, will face an uphill task in drawing a line between coercion and consent to sex.
"In the African context many marriages are loose bonds of convenience where women are seen as companions of utility. And women on the other hand have taken sex as a sense of duty (or a sign of submission) to their husbands even when they do not like it. Many are instances where mentally, physically and/or emotionally tortured women choose to remain silent about their ordeals for the benefit of their children. In such cases any sexual intercourse between such couples is technically a rape because the woman ‘consents’ to it under duress. But there if there is no complainant such a crime cannot be prosecuted. When looked in the light of a modern legal mechanism most marriages (in the developing world where women are economically disadvantaged) become a string of rape incidences since are forced by circumstances to cling to their husbands long after the relationship is technically over.
"On the other hand the Bill will also help in lightening the burden for women living under stressful marriages by giving them the option to decide at what point, a violent and abusive husband should be exposed," says Laibuta.
The lawyer further says the Bill leaves an evidential dilemma in the section that provides for the prosecution of sexual offenders who commit such crimes ‘with the intention spread the deadly HIV/Aids and other dangerous STDs’.
"We all know that testing for HIV/Aids is voluntary and confidential.
Unless the offender decides to cooperate in court therefore, there is no way the prosecution can prove behold any reasonable doubt that he/she knew beforehand that he suffered from a dangerous STD before committing the crime.
"But again the Bill cannot be watered down because all issues cannot be addressed. Needless to say, this section will help to capture the situation where affluent HIV patients have been going on rampage spreading the disease after testing positive or even after spouses have long succumbed to the scourge," he says.
And Mbuli says if passed into law as it is, the Bill will serve to make jails more congested than they are currently.
The psychologist says scanty dressing and behaviour should not be an excuse for rape or any other sexual offences against any gender. Mbuli says rape has adverse effect on victims.
The first thing that rape victims want to do is to take a bath. This action is wrong because it erases all evidence. Even though you may not want to visit a hospital and have an examination, it is crucial that you get some sort of immediate medical attention. Often, women experience low self-esteem or low confidence. Many women go into tantrums of self-blame, she says.
"Some victims will ask themselves: Why did I wear this or that? Why did I walk out late or why did I use that path? They should always remember that it is not their fault and they did not ask for it," the expert says.
In a state of denial many suffer numbness and become uncomprehending.
After experiencing shock and denial, a survivor often moves to the stage where she admits to herself that she has in fact been viciously violated and allows herself to react emotionally. She becomes angry and grieves.
"This is followed by depression. The victim experiences both a loss of self-esteem and self-confidence, and even independence, some women fall into a long-term depression," she says.
Proper and prompt counselling is paramount so as to lead the victim to accept the situation, then learn to live with it positively, she says.
In many cases though a survivors sense of safety and view of the world is usually permanently altered by experiencing a rape.
Mbuli suggests some steps in preventing rape. Says she, ‘Make a loud noise — carry a whistle in dangerous situation and/or scream "police" to attract attention.
Munir Mazrui of the Supreme Council of Kenya Muslims (Supkem) says he agrees with proposals in the Bill arguing that the penalties suggested are even too gentle as compared to the weight with which Islamic Law attaches sexual offence.
"In Islamic Law a sexual offender is stoned to death. In Kenya these crimes are offences that are to be tackled by the ordinary courts. The Kadhi courts do not engage in the arbitration of such cases whether in the current or the constitution to come. But we support the Bill to the hilt.
Sexual offences have become an inherent social problem that should be curbed once and for all," he says.
Bishop Cornelius Korir, the chairman of Episcopal Conference and Head of Eldoret Catholic Diocese says: Defilement is a product of moral decay and castration, as had been suggested, would only be addressing the effects and not the causes.
We need to go down to root causes of defilement before we establish a long lasting and viable mode of punishment. Some of the rapists are mental cases and thus the need for long-term confinement for rehabilitation purposes.
In my view, sexual offenders should be handed a long term jail sentence, preferably over 15 years, so as to make others learn from them, which is just what this Bill has stipulated.
Those who rape act with animal instincts and its during this period of confinement that they can be rehabilitated to behave like human beings.
Mrs Joan Opiyo, a councillor at the Eldoret Municipal Council says rape cases are actually getting out of hand and this needs to be checked. The only way to do so is to make sure that rapists get stiff sentences, preferably life imprisonment.
It is more disheartening that the rapists go for small girls, even one-year-old babies. Severe punishment should be meted out to restrain rapists from ruining the lives of innocent children because some of these men are people of sound minds, but interestingly derive pleasure from having forceful sex with hapless women and little children. Parliament should hasten to pass the Bill.
And Sally Mbeche, a lawyer and child rights activist says she is happy the castration Bill never sailed through as it amounted to tempering with human rights. She says: "This would have been like committing an offence to fight another. I am very happy with the life sentence for rapists and minimum of 15 years proposed in the amended Bill.
The Bill, drafted by a team of experts drawn from the AG’s office, human rights organisations and medical practitioners, and headed by Nominated MP Njoki Ndungu seeks to harmonise local legal mechanisms with modernity.
For instance it is the high time that the law seriously took into account influence as a key driving force into the ever-escalating sexual offences in the country. The comprehensive provision for special prosecution of rape cases where victims contract HIV/Aids and other fatal STDs into the yet to be debated Bill, cannot be gainsaid. In the past few decades, for example, that part of the colonial legislation has continued to attract criticism from the legal fraternity, gender equality and human rights activists among other stakeholders, for being lenient to sexual offenders.
This weakness has been attributed to the increased incidences of rape, defilement and other sexual offences against girls, women and other vulnerable groups.
Perhaps due to the recent overwhelming reports of frequent gory incidents of sexual violence against assailable groups, the authors of the Bill became overzealous, putting a lot of emphasis on punishing, rather than rehabilitating offenders. This, if not checked, could amount to throwing the baby with the bath water.
Social experts have expressed mixed concerns over the Bill with some lauding it on the basis that it will help to protect vulnerable groups if it is passed by Parliament.
Others feel the proposed law is biased against the offender.
A lawyer, Mr K. I. Laibuta says: "This proposal is too harsh for the offender. It only provides for minimum periods that a convicted offender can serve. Indeed in nearly in all sections, the Bill gives the court sufficient leeway to hand an offender up to a life sentence.
"The ‘not less than’ clause that precedes every ‘penal custodial
sentence’, should have been reserved for only a handful of specific very serious sexual offences."
And psychologist Mrs. Agnes Mbuli of Bridgehouse Consultants agrees with the lawyer.
Says Mbuli, " Long custodial sentences are likely to brake down the offender rather than reform him. After many years in jail many offenders come out hopeless and insecure. Many suffer mental breakdown while others may result to similar crime or even more heinous offences in protest."
Laibuta says the Bill "erroneously presumes that only long custodial sentences" can be deterrent against those who commit sex crimes.
On the contrary, he says, such penalties can be counterproductive,
expressing fear that sexual offenders might turn murderous if the crime attracts such heavy penalties.
"A victim who would otherwise survive might as well be killed by the offender, who is desperate to avoid getting identified in court for fear of being convicted and serving such long sentences," says the Laibuta and Associates lawyer.
Though the proposed law puts some emphasis on offender rehabilitation, Laibuta feels this is the direction the law should go rather than the tough penalties.
And the lawyer also observes that the Bill presupposes that most Kenyans are capable of exercising self-control based on its hard line approach.
Mbuli, on the other hand, observes that the law does not provide for the rehabilitation of sexual offence victims. "It is clear that the Bill presumes that every rape victim has access to sound healthcare and psychological services before or after reporting rape to police. This is not the situation in most cases though. Therefore the proposal should compel the state to take this responsibility just as it does for offenders," she observes.
She says the rise in sexual offences, like other crimes cannot be fully tackled through the courts alone. "Neither can offenders be deterred by stiff jail terms only," she says.
She points out that prevalence of crime in the country is mainly associated with crumbled moral, psychosocial and economic fabrics.
"External influences through modern technology are also partly to blame.
"In a few cases an offender is driven to crime by a mentally bent character. But in many instances, poverty, unemployment, peer pressure, abuse of drugs and unstable families are some of the driving forces that influence the youth to crime. Pornographic materials available on the Internet, television and other sources can enhance sexual perversion and eventual assault. These are some of the areas that should be looked into when solving the problems," she says.
The prosecution, in cases concerning marital rape, will face an uphill task in drawing a line between coercion and consent to sex.
"In the African context many marriages are loose bonds of convenience where women are seen as companions of utility. And women on the other hand have taken sex as a sense of duty (or a sign of submission) to their husbands even when they do not like it. Many are instances where mentally, physically and/or emotionally tortured women choose to remain silent about their ordeals for the benefit of their children. In such cases any sexual intercourse between such couples is technically a rape because the woman ‘consents’ to it under duress. But there if there is no complainant such a crime cannot be prosecuted. When looked in the light of a modern legal mechanism most marriages (in the developing world where women are economically disadvantaged) become a string of rape incidences since are forced by circumstances to cling to their husbands long after the relationship is technically over.
"On the other hand the Bill will also help in lightening the burden for women living under stressful marriages by giving them the option to decide at what point, a violent and abusive husband should be exposed," says Laibuta.
The lawyer further says the Bill leaves an evidential dilemma in the section that provides for the prosecution of sexual offenders who commit such crimes ‘with the intention spread the deadly HIV/Aids and other dangerous STDs’.
"We all know that testing for HIV/Aids is voluntary and confidential.
Unless the offender decides to cooperate in court therefore, there is no way the prosecution can prove behold any reasonable doubt that he/she knew beforehand that he suffered from a dangerous STD before committing the crime.
"But again the Bill cannot be watered down because all issues cannot be addressed. Needless to say, this section will help to capture the situation where affluent HIV patients have been going on rampage spreading the disease after testing positive or even after spouses have long succumbed to the scourge," he says.
And Mbuli says if passed into law as it is, the Bill will serve to make jails more congested than they are currently.
The psychologist says scanty dressing and behaviour should not be an excuse for rape or any other sexual offences against any gender. Mbuli says rape has adverse effect on victims.
The first thing that rape victims want to do is to take a bath. This action is wrong because it erases all evidence. Even though you may not want to visit a hospital and have an examination, it is crucial that you get some sort of immediate medical attention. Often, women experience low self-esteem or low confidence. Many women go into tantrums of self-blame, she says.
"Some victims will ask themselves: Why did I wear this or that? Why did I walk out late or why did I use that path? They should always remember that it is not their fault and they did not ask for it," the expert says.
In a state of denial many suffer numbness and become uncomprehending.
After experiencing shock and denial, a survivor often moves to the stage where she admits to herself that she has in fact been viciously violated and allows herself to react emotionally. She becomes angry and grieves.
"This is followed by depression. The victim experiences both a loss of self-esteem and self-confidence, and even independence, some women fall into a long-term depression," she says.
Proper and prompt counselling is paramount so as to lead the victim to accept the situation, then learn to live with it positively, she says.
In many cases though a survivors sense of safety and view of the world is usually permanently altered by experiencing a rape.
Mbuli suggests some steps in preventing rape. Says she, ‘Make a loud noise — carry a whistle in dangerous situation and/or scream "police" to attract attention.
Munir Mazrui of the Supreme Council of Kenya Muslims (Supkem) says he agrees with proposals in the Bill arguing that the penalties suggested are even too gentle as compared to the weight with which Islamic Law attaches sexual offence.
"In Islamic Law a sexual offender is stoned to death. In Kenya these crimes are offences that are to be tackled by the ordinary courts. The Kadhi courts do not engage in the arbitration of such cases whether in the current or the constitution to come. But we support the Bill to the hilt.
Sexual offences have become an inherent social problem that should be curbed once and for all," he says.
Bishop Cornelius Korir, the chairman of Episcopal Conference and Head of Eldoret Catholic Diocese says: Defilement is a product of moral decay and castration, as had been suggested, would only be addressing the effects and not the causes.
We need to go down to root causes of defilement before we establish a long lasting and viable mode of punishment. Some of the rapists are mental cases and thus the need for long-term confinement for rehabilitation purposes.
In my view, sexual offenders should be handed a long term jail sentence, preferably over 15 years, so as to make others learn from them, which is just what this Bill has stipulated.
Those who rape act with animal instincts and its during this period of confinement that they can be rehabilitated to behave like human beings.
Mrs Joan Opiyo, a councillor at the Eldoret Municipal Council says rape cases are actually getting out of hand and this needs to be checked. The only way to do so is to make sure that rapists get stiff sentences, preferably life imprisonment.
It is more disheartening that the rapists go for small girls, even one-year-old babies. Severe punishment should be meted out to restrain rapists from ruining the lives of innocent children because some of these men are people of sound minds, but interestingly derive pleasure from having forceful sex with hapless women and little children. Parliament should hasten to pass the Bill.
And Sally Mbeche, a lawyer and child rights activist says she is happy the castration Bill never sailed through as it amounted to tempering with human rights. She says: "This would have been like committing an offence to fight another. I am very happy with the life sentence for rapists and minimum of 15 years proposed in the amended Bill.
