CJ interview: Chitembwe under fire over past 'willing to have sex' ruling in defilement case

Justice Said Chitembwe has defended a past ruling on a defilement case while appearing before the JSC during interviews for Chief Justice on Monday.

The judge said that despite the fact that the law finds anybody who defiles someone below the age of 18 guilty, there has to be consideration of the practicality of the issue.

“How do you take a 19-year-old young man for 15 years in jail for having a relationship with a 17-year-old girl?” he wondered.

Justice Chitembwe had in the past ruled that a child appeared "willing to have sex with the defendant".

He, therefore, set free Martin Charo, 24, who had been sentenced to 20 years in prison for having sex with a 13-year-old.

His decision in Charo's case came up again as he was asked to explain himself.

The decision in Charo's case received the Golden Bludgeon (a court ruling with a negative effect on women and girls' lives) in Spain in 2017 by Women’s Link Worldwide. It ranked the world's worst ruling for women’s rights in 2016 among 18 other cases.

Chitembwe said when he writes his judgments, he is dealing with problems as a judicial officer independently and does not think of what the appeal judge will say.

“I am ready to be criticized,” he said.

Chitembwe was asked to explain if he does not have duty as a judge to write in such a way that the person reading his judgment will be able to understand.

In effect, JSC commissioner Justice David Majanja said people understood his decision to mean that he was saying that as long as one behaved in a way that seemed to appear as an adult would, then the defilement didn’t count.

Meanwhie, Chitembwe also said he is not going to the Supreme Court with the mindset of fixing the court because he sees there is no problem. However, he said he will enhance collegiality in the Judiciary.

Below is excerpt of his interview,

Commissioner Warsame: In your view there is no problem to be resolved in supreme court both in terms of working of the court, jurisprudence?

Judge Chitembwe: Let me say this if there are problems. The bible says if there is a problem return it to me and so is the Quran.

Commissioner Warsame: In your view there is no problem in terms of perception, delayed judgment for you to settle?

Judge Chitembwe: I don’t like beating about the bush perception will always be there how do you please perception.

Commissioner Warsame: Has jurisdiction of court in terms of criminal law, election petition been settled ten years down the line?

Judge Chitembwe: There has been dynamics.

Commissioner Warsame: Has the jurisprudence to jurisdiction on arbitration, election matters and criminal matters been settled?

Judge Chitembwe: I can’t say it has been settled. It is not a problem in the sense that a similar problem will come and the judge will stick to their decision so what do you do? I am not a magician, I won’t tell judges why did you decide like this? It doesn’t work like that.