- This led to the quashing of the conviction and 20 years sentence
- The court cited a previous decision that said, belief that a child victim cannot be cross-examined was a misconception that must be disabused
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If a minor claims that he or she has been defiled or sexually assaulted, the accused must be allowed to cross examine the child during trial.
This is the determination of the High Court, which holds that no matter the age, anybody making grave allegations must be subjected to cross-examination, before a final decision is arrived at.
The determination was in regards to a case in which a magistrate failed to allow a man charged with defiling an eight-year-old to cross-examine the child during trial.
This led to the quashing of the conviction and 20 years sentence.
The trial court found that the eight year-old victim could not take an oath before testifying because the law exempts minors from giving sworn accounts.
It said, “While the minor’s evidence-in-chief was duly recorded, that was all [and] the appellant was not accorded any chance to cross-examine the victim. Further, no reasons were given for such state of affairs.”
The court cited a previous decision that said, belief that a child victim cannot be cross-examined was a misconception that must be disabused.
“...it would appear that misconception arises from a view that because accused persons are not cross-examined whenever they make unsworn statements in the defence, child witnesses who did not take the oath should be treated in the same way. Such a view is oblivious of the peculiar protection given to an accused person in the form of a right to make an unsworn statement with no liability to be cross-examined,” it said.
The court said unless the child is cross-examined and their victim-narrative tested, then accused persons are not well served in the course of justice and the trial becomes unfair.
“….. this court takes the view that unless a child's evidence is subjected to cross-examination, it would be impossible to know whether the evidence is false or not,” it said.
“Section 208 of the Criminal Procedure Code applies to all witnesses who give evidence and is not confined to only those witnesses who give sworn evidence. It covers children giving evidence not on oath as well.”
The case involved Benson Ekuwam, who was convicted in May last year for defiling a minor and sentenced to 20 years in prison.
Having struck down the conviction and sentence for failure of testing the evidence of the victim, the court ordered that the man be subjected to fresh trial.
It ordered that the retrial be before a new magistrate.
“[On] the matter at hand, the error captured above was precipitated by the court. Ordinarily in such instances a retrial is allowed. The witnesses are readily available and the appellant has been in custody for slightly more than one year. A retrial will meet the end of justice,” the court said.
“Consequently, the appeals on conviction and sentence are hereby allowed. The conviction is hereby quashed and the sentence of 20 years imprisonment set aside forthwith. The appellant shall be retried by any other court other than Hon. S.K. Mutai, SRM.”
The court ordered that Ekuwam be released from prison immediately and be handed over to the police.
It ordered that he be arraigned for plea-taking within seven days of the court decision.