A missile to the Defilement Jurisprudence: Martin Charo v Republic.
By Murithi Antony (*)
“Courts in developing the law do not (and should not) give expression to their personal views… Rather, they unravel the spirit of the law, unfold its hidden force and reveal its meaning.”
All Bad precedents begin as a justifiable Measure! (2)
Introduction.
That judges make law, is axiomatic albeit they deny it. In their day-to-day decisions, judges end up setting rules that affect the transactions and activities of the society over the subject, policy-making among others. Astonishingly, they will never accept that they make law. As Martin Shiparo, a professor of Law, at the University of California, notes “Such is the nature of courts. They must always deny their authority to make law, even when they are making law.” On the same, Pintip Dunn muses that judges occupy a paradoxical position in this world, one in which their function requires them to make law, while their legitimacy depends on the fiction that they interpret the law. (3) according to him, judges may make law not because they want to make law, or even they want to make it, but because of circumstances confronting them.
Judges are confronted with more or less cases that statutes have not expressly legislated on. Professor Hart (4)depicts such cases as a “penumbra”. He proceeds to argue that when the rules run out, all a judge is left with to make decisions in hard or penumbral cases, is discretion. In such situations, judges need to invoke moral principles which prima facie, should portray a picture of what the society could have desired it to be. These principles must be legally and morally authoritative. Dworkin ruminates that;
“…a moral principle is legally authoritative where it contributes to the best moral justification for a society’s legal practices and interpretation, considered as a whole, if, and only if, it satisfies two conditions, namely; the principle coheres with existing legal material; & the principle is the most morally attractive standard that it satisfies.” (5)
such principles make certain that there are no loopholes in law before the parliament enacts the governing law, and that they have formed a basis in which other courts shall ground their arguments by dint of the doctrine of Stare Decisis.
By doing so, Judges ensure that there is the continued development of Law, to address and satisfy the needs of the developing society. Kiage, JA, urges those who interpret the law to do so in a manner that permits its development, precisely because the law, as with all life, is not static. (6) Conversely, judges in developing law should stick to its principles. As stated by Raz, Courts in developing the law do not (and should not) give expression to their personal views, nor do they reflect external social or political forces. Rather, they unravel the spirit of the law, unfold its hidden force and reveal its meaning. (7) This is to say, a judge has no discretion to make his own law and go against express provisions of the statutory (written) laws. Where the law has sufficiently provided for the matter in a subject, the judge is bound to interpret the written law according to its letter and spirit. A judge may argue while interpreting the law, that parliament or the drafters of such law could not have intended to have a certain outcome in question, and is allowed to use the numerous tools and approaches to statutory interpretation to bring out the best connotation. Be it as it may, if the judge feels that the law is not a good law, he has no authority to substitute it with what he thinks it ought to be. This is because, as John Austin writes, what the law is is one thing, and what it ought to be is another. (8)
Martin Charo v Republic. (9)
The appellant was charged with the offense of defilement contrary to Section 8(1)(3) of the Sexual Offences Act. The particulars were that the appellant on diverse dates between 2nd December 2011 and 3rd January 2012 at [particulars withheld] area in Kilifi County within Coast Province intentionally and unlawfully caused penetration of his genital organ namely Penis into the genital organ, namely vagina, of E N a girl aged 13 years. The trial court convicted the appellant and sentenced him to serve twenty years in prison. (10)
Dissatisfied with the sentence, the accused appealed to the High court. The appeal was heard and determined by Hon. Justice Said Chitembwe. The learned judge framed one issue for determination; whether the appellant defiled PW1.
In his 5-page judgement, the judge did not find effort to define defilement, maybe for the reason that it was defined by the trial court. I find it nay necessary that I provide statutory definition and elements of defilement before immersing in the analysis of the decision.
Section 8(1) of the sexual offences Act (11) envisages that;
A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
The Children’s (12)Act defines a child as any person below the age of 18 years. (13)
As regards elements of defilement, the prosecution has to prove there was penetration with a child. The court in Kibale v Uganda,(14) explicitly expressed itself on the matter of elements of defilement in the following words;
In order to prove the commission of the offense of defilement, it has to be established `that there had been penetration of the sex organ of the victim by the sex organ of the assailant and that the victim was below the age of 18 years (15)
Whether the child had consented or not is immaterial. In law, a child has no capacity to consent. Section 42 of the Act states as follows;
For the purposes of this Act, a person consents if he or she agrees by choice, and has the freedom and capacity to make that choice.(16)
Section 43 (4) further envisages; (17)
The circumstances in which a person is incapable in law of appreciating the nature of an act referred to in subsection (1) include circumstances where such a person is, at the time of the commission of such act -
- Asleep;
- Unconscious;
- In an altered state of consciousness;
- Under the influence of medicine, drug, alcohol, or other Substance to the extent that the person — s consciousness or Judgment is adversely affected;
- Mentally impaired; or
- A child.
It is therefore indisputable that a child lacks the capacity to consent, ruling out consent as a defense in a defilement case. The effect of section 43(4)(h) is that a person below the age of 18 years is rendered incapable of appreciating the act, and cannot, therefore, consent to it. (18)
On Defense to defilement, Section 5 of the Act provides for defense in Defilement in the following words;
It is a defense to a charge under this section if -
a) it is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offense; and
b) the accused reasonably believed that the child was over the age of eighteen years.
This section means that the accused person must have reasonably believed that the child was over the age of 18 years. This means, that even if the child presented herself as an adult, as the judge purpotes in this case and the accused took no measure to ascertain that indeed the child was over 18 years, he cannot rely on the section as a defense. Even if all children decided to act as mature adults, that does not make them adults as long as they have not attained 18 years.
These provisions are couched in plain and peremptory terms, requiring no further exposition.
How the learned judge expressed himself?
He starts by acknowledging that a child below 18 years cannot give consent to sexual intercourse. He proceeds and invents his “own” approach of interpretation, which to me, is making his own law, whereby he expressed himself thus;
“…However, 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.” (19)
The above-cited extract, as far as a critical reader can see, seems to suggest that a person below the age of 18 years can consent impliedly through his/her conduct to sexual intercourse, and therefore the accused person should be viewed as the victim. He forgot that in defilement consent is immaterial, and gave a deaf hear to the desperate calls of the sexual offenses act. He also was oblivious, for lack of a better word, to the fact that a minor lacks the capacity to give consent as per the provisions of law. What the learned judge did here is invent his own law instead of interpreting and applying the express provisions of the statute.
As if that was not enough, the learned judge seemed to suggest that when a minor engages in and enjoys sex without complaining, the offense of defilement should be ruled out. He was oblivious to the spirit of the law on defilement, which is to protect the children from sexual abusers and hunters. He fails to understand the effect of defilement in a country and how it shuts the dreams of thousands of young children.
Worryingly, Justice Chitembwe did not cite even a single judicial authority or case law. Maybe he could have not misdirected himself if he had painstakingly pondered the decision in Bonu v R, (20)where the appellant was accused of the defilement of a child aged 10 years. He alleged that he was involved in a love affair with the complainant and thus she was an active and willing participant in the sexual relations. The court reiterated the notorious law that;
A minor has no capacity in law to give consent to sexual relations, thus no matter how willing the minor may have been, any and all acts of sexual intercourse with persons proved to be below the age of 18 years amounts to an offense.
It was incorrect for the judge to proceed with the error that enjoyment of intercourse by a minor is akin to consent, yet the minor does not even have the capacity to consent.
What kind of precedent is this?
Elisha Z Ongoya, addressing the court of Appeal judges argued that “Superior courts in any judicial system are courts of law, courts of justice, and courts of jurisprudence.” (21)“Courts of Jurisprudence”, he elucidates, “do more than just interpret the law — they impact the trajectory of the law. They unpack the meaning, nature, and character of the law. They sometimes shake the landscape of the law.” (22) Irrefutably, decisions of a superior court are binding to all subordinate courts, as they shed light and guides judges and magistrates on which path to follow, through the doctrine of Stare Decisis. (23)
Seated as a Hight court (superior court) judge in an Appeal case, Justice Chitembwe decision has the effect of influencing how defilement cases shall be handled by the subordinate courts in the future. Criminals will be using this precedent as a shield from facing the law. This is a dangerous precedent and should be overruled. As Julius Cesare put it
“All bad precedents begin as a justiciable measure”!
Conclusion.
The role of a judge is to interpret the law, not to make law! Where a judge is allowed to apply moral principles, they must be morally and legally authoritative, reflecting the aspirations of the society. In this case, society could not have aspired to exonerate sexual offenders. Worth to note, that it is noteworthy to understand that the defilement law is meant to protect vulnerable children. Children have no capacity to consent and there is nothing like consent by conduct!
***
The writer is a student of Law at the University of Embu. You can reach him through amurithi326@gmail.com
A Student of Law (LL.B) at UoEm School of Law. You can reach me through amurithi326@gmail.com.
Goldsworthy, Jeffrey. “Raz on Constitutional Interpretation.” Law and Philosophy 22, no. 2 (2003): 167–93. Available at http://www.jstor.org/stable/3505152. Accessed on 28th April 2022. (emphases mine).
2. Quote by Julius Cesar.
3. Dunn PH, ‘How judges overrule: Speech Act theory and the doctrine of Stare Decisis’ 113 (2) Yale Law Journal, 2003, 493.
4. Hart, H. L. A. (1958). “Positivism and the Separation of Law and Morals”. Harvard Law Review. 71 (4): 593–629. doi:10.2307/1338225. JSTOR 1338225. Available at <https://en.wikipedia.org/wiki/Hart%E2%80%93Fuller_debate#:~:text=A%20%22penumbra%22%20case%20would%20be,the%20words%20in%20the%20statute.> Accessed on 28 April 2022.
5. Hunter, Tina. (2005). Interpretive Theories: Dworkin, Sunstein, and Ely. ERA — Humanities and Creative Arts. 10.53300/001c.5467. available at https://www.researchgate.net/publication/43767742_Interpretive_Theories_Dworkin_Sunstein_and_Ely accessed on 28th April 2022.
6. The BBI Judgement, Court of Appeal. The decision was later affirmed by the Supreme court of Kenya.
7. Goldsworthy, Jeffrey. “Raz on Constitutional Interpretation.” Law and Philosophy 22, no. 2 (2003): 167–93. Available at http://www.jstor.org/stable/3505152. Accessed on 28th April 2022.
8. John Austin, the province of law determined.
9. Martin Charo v Republic [2016] eKLR. Criminal Appeal №32 of 2015.
10. Ibid, at para 1
11. 2006.
12. №8 of 2001.
13. Ibid, Section 2.
14. Criminal App No 21 of 1998.
15. Tibamwenda v Uganda [2008]2 EA 369.
16. Sexual Offences Act, Section 42.
17. Ibid, section 43.
18. Ibid.
19. Ibid, note 9, at para 11.
20. [2010] EKLR., See also, Rono v Republic [2009] eKLR., See also Republic vs. Goliati, where the two accused persons defiled a 10year girl in exchange for money. The, accused persons argued that the girl had consented to the sexual intercourse and thus they could not be guilty. The court stated that “Consent of the complainant provides no defense to a charge of defilement. A girl who is Under the age of 13 is not capable of giving that consent”.
21. Ongoya, E. (2020) “Developing Jurisprudence or Creating Chaos? Reflections on the Decisions of the Court of Appeal of Kenya on Selected Topical Areas of Law (Speech)”, Strathmore Law Journal,
4(1), pp. 170–186. Available at < https://journal.strathmore.edu/index.php/law/article/view/51/37> accessed on 27th April 2022.
22. Ibid.
23. Stare Decisis is a common law Doctrine which provides that courts should be guided by precedents or earlier decisions in like matters.
