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 ruling was awarded the Golden Bludgeon in Spain on Wednesday by Women’s Link Worldwide, beating 18 other cases to emerge the world’s worst ruling for women’s rights in 2016.
The State has since appealed against the ruling.
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.
Under the 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 that, Justice 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, 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 the Judiciary, however, said the Judiciary would need to see the report by the organisation before deciding whether to comment on it.
Judge has weathered many storms
Justice Said Juma Chitembwe, who has a master’s degree from the University of Nairobi, is a distinguished legal mind who has found himself in the media for all the wrong reasons.
He has given rulings that would probably be done differently by others to avoid public uproar or scrutiny.
He has weathered many storms. In December 2009, the judge from Golini Village in Kwale County, was arrested by Kenya Anti-Corruption Commission detectives in Mombasa over Sh1.37 billion fraud and abuse of office claims.
However, three years later he and former National Social Security Fund managing trustee Rachel Lumbasyo, were acquitted when the court ruled that they had no case to answer.
Justice Chitembwe, who was recently transferred from Malindi to Marsabit, resumed his duties.
In 2014, the judge who also served at Kakamega High Court declared the prolonged curfew in Lamu County as unlawful and contrary to the spirit of the law.
In the case filed by the Law Society of Kenya, he ruled that security cannot be maintained by imposing a curfew for more than a year.
Early in the year, he barred Interior CS 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.