Mystery of dealing with child sex offenders

Should a child who is accused of a sexual offence be sent to jail as any other wrongdoer, or be excused in the hope that they will mend their

ways? This is the legal dilemma judges and magistrates are finding themselves in that has led to contradictory decisions being issued.

Judges are not sure how to deal with child sex offenders. Sometimes a boy ends up being victimised in such cases, despite being a minor. Question then becomes what ought to be done when two adolescents engage in consensual sex in their quest to experiment in life and the two did not necessarily have wrong intentions?

Having dealt with several criminal cases, judge Luka Kimaru said in most cases, the aspect of the perpetrator being a child is often forgotten because sexual offences are viewed through emotional lenses.

“In some cases, two teenagers consented to sex, but of course the law does not allow that because children are not allowed to give consent,” he said.

He observes that even prosecutors have no problem with children under the age of 15 when it comes to their release. However, there is a problem with those who are above 15 years but are not yet 18.

“Courts too are under no pressure to send to prison offenders below 15 years, but the 16 to 17 year olds who in some instances have even dropped out of school are in some sort of legal hole,” the judge told the Star.

He said the court is also faced with the dilemma of some offenders giving false age, which forces them to be taken for age assessment. And while this is done, they are kept in remand, which in most cases does not have provision for children.

Judge Ngenye Macharia heads the National Committee on Criminal Justice, which is tasked with checking the criminal justice and proposing changes that need to be made. She agreed that there is a problem when it comes to child offenders.

She noted that the courts are alive to this problem as a result of which new jurisprudence is developing. She went on to state that the main hurdle is that the law is specific with respect to minimum mandatory sentences which continue to render most youths in prisons.

As regards the approach by her committee, she noted that there is a separate Taskforce headed by the Fida chairperson which is tasked to look into amendments of the Sexual Offences Act.

The approach by the committee she heads is to liaise with that dealing with Sexual Offences Act so that both committees do not duplicate each other’s work.

An audit report on criminal justice system also points out the problem of child sex offenders. It puts the number of child offenders held in remand homes over defilement at 15 per cent.

The report goes beyond the analysis of the problem and proposes other ways of dealing with child offenders, as opposed to charging them in court.

For example, it says the national government, county governments and faith-based institutions should come together and develop programmes on reproductive health education.

Also recommended was an initiative by the state to reach out to parents in churches, mosques, temples and schools to promote good parenting skills. Currently, 135 child offenders are being held in different borstal institutions across the country.

Of the 135, five are in Kamiti, one in Kamae girls, 57 in Kakamega and 72 at Shimo borstal in Mombasa.

 

TEEN JAILED

One such case where a minor was charged with sexual offence involved an appellant called SCN, who was convicted of defilement. For the offence of defilement and indecent act with a child, he was sentenced to serve life imprisonment.

The complainant in this particular case was a nine-year-old standard one pupil. Whilst he was playing with a friend in a field near Flyover shopping center in January 2012, the appellant came and took him to a place where there was saw dust and defiled him.

The appellant at the time was 17 years old.

There were no witnesses. The incident came to light a few days after it had occurred, when the complainant’s mother was washing him and he complained of pain in the anus.

When she asked him what had happened, he told her that the appellant, whose upper teeth were missing, had defiled him. She then took him to a hospital, where the defilement was confirmed. Thereafter, they reported the matter to the police.

During trial, the complainant had this to say: “It was during the day when you defiled me. I cannot recall how you were dressed. I could not scream for help because you were pressing my head on the ground…I couldn’t tell what time it was but I had already come from school at 1pm… I know you because you were a mechanic there at the road. I could hear you being called C. We live near the field in a plot. It is you who defiled me not drunkards.”

The young man (the convict) appealed, saying the charge against him was defective and there was no proof of penetration.

He also complained that the magistrate relied on evidence of a single witness that was insufficient and inconclusive.

The magistrate convicted the appellant notwithstanding the fact that he was a child at the time he committed the offence, thus the conviction and sentence were in contravention of Article 53 of the constitution and other provisions of the law.

Determining the appeal, judge Richard Mwongo said the trial magistrate did not wrestle with the question of the age of the appellant at the time of commission of the offence in determining the sentence.

“The dilemma created by this scenario in which the Sexual Offences Act provides for a specific sentence, but is silent about the age of the offender, can be dealt with by reference to Section 191 of the Children’s Act. That provision reads as follows:

“Where a child is tried for an offence, and the court is satisfied as to his guilt, the court may deal with the case in one or more ways.

“For example the law allows discharging the offender, or making a probation order against the offender, committing the offender to the care of a fit person, whether a relative or not, or a charitable children’s institution willing to undertake his care, among many others.

“However, there is the question as to what the trial court is to do in respect of minors who commit offences but attain the age of majority before sentencing.

“The statutory scheme stipulates that a child above 16 years old can only be held in a borstal institution for a maximum period not exceeding three years. However, Section 191( 1 )(l) Childrens Act provides for an offender to be dealt with in any other lawful manner.”

Judge Mwongo added: “A similar dilemma is created when the offender has already turned 18 at the time of conviction or at the time of appeal, as is the case here. Where the offence committed was a particularly vicious or serious one, the option of releasing such an offender back to the society is not an attractive one. It may even be downright dangerous for the society. Further, it might deny the individual offender a true opportunity to reflect on his actions in a custodial setting and take the rehabilitative turn.”

The judge noted that he didn’t find anything showing the magistrate was in error in convicting the appellant.

He, however, reduced the sentence terms from life to 10 years, considering the fact that the appellant was a child at the time of commission of offence.

“With regard to the sentence I have, as earlier pointed out, found that the appellant was a child at the time of committing the offence,” held the judge.

“Accordingly, the trial magistrate ought to have prescribed any other lawful sentence pursuant to section 191( 1 )(g) and (l) of the Children’s Act, and the authorities herein cited. Accordingly, I hereby reduce the appellant’s sentence to a custodial sentence of 10 ( 10 ) years.”

 

MINOR FINED

In another case, BOO was charged in Kangundo with the offence of defilement on March 28, 2015, at a market in Matungulu, Machakos county.

It was found that he intentionally caused his penis to penetrate the vagina an eight-year-old child.

The trial magistrate found the appellant guilty of the main count of defilement, convicted him accordingly and sentenced him to pay a fine of Sh100,000 and, in addition, to pay the complainant compensation of Sh50,000.

However, the magistrate’s decision to impose a sentence was quashed by judge George Odunga.

“In the premises, while I find that the conviction of the appellant was proper and lawful, I, however, quash the sentence imposed on him. I, instead, direct that the appellant shall report to the nearest chief’s office once a week for community service for three months,” held judge Odunga.

He noted that the appellant was no longer in school and was in fact learning building and construction in Nairobi.

 

CONVICT FREED

A third case is one where CMK was charged with the offence of defilement. He defiled a 16-year-old girl in Trans Mara district, Narok county.

He pleaded not guilty, was tried, convicted and sentenced to 15 years’ imprisonment.

He appealed on grounds that the sentence was excessive and his rights as a child were violated because at the time of the offence, he was 17 years old.

Handling the appeal, judge James Wakiaga had this to say: “Whereas the law outlaws sexual act with minors, where the offence involves the minors themselves, it would be in the best interests of justice for the courts to look at the conduct of the parties, including how the complaint is filed, so as to protect the boy child, too, from discrimination.”

He quashed the conviction and set the appellant free.

“I, therefore, find that the conviction of the appellant was not safe and would therefore allow the appeal set aside the same and, having quashed the sentence, order that the appellant be released forthwith from custody, unless otherwise lawfully held.”

 

LEGAL OPTIONS

In spite of the provisions of any other law, where a child is tried for an offence, and the court is satisfied as to his guilt, the court may deal with the case in one or more of the following ways: 

(a) By discharging the offender under section 35 ( 1 ) of the Penal Code (Cap. 63 );

(b) By discharging the offender on his entering into a recognisance, with or without sureties;

(c) By making a probation order against the offender under the provisions of the Probation of Offenders Act (Cap. 64 );

(d) By committing the offender to the care of a fit person, whether a relative or not, or a charitable children’s institution willing to undertake his care;

(e) If the offender is above 10 years and under 15 years of age, by ordering him to be sent to a rehabilitation school suitable to his needs and attainments;

(f) By ordering the offender to pay a fine, compensation or costs, or any or all of them;

(g) In the case of a child who has attained the age of 16 years, by dealing with him in accordance with any Act that provides for the establishment and regulation of borstal institutions;

(h) By placing the offender under the care of a qualified counsellor;

(i) By ordering him to be placed in an educational institution or a vocational training programme;

(j) By ordering him to be placed in a probation hostel under provisions of the Probation of Offenders Act (Cap. 64 );

(k) By making a community service order; or

(l) In any other lawful manner