On the 20th – 23rd of May, 2015 , Kituo cha Sheria in partnership with the Judiciary Training Institute and the Public International Law & Policy Group held a retreat to discuss and provide input to the proposed curriculum on Sexual Offences and Gender Based Violence.
During this retreat both magistrates and judges gave their personal experiences, some saddening others encouraging on handling SGBV cases. One disheartening case was where a magistrate denied bail to 2 street boys ( adults) accused of defiling a minor, only for the 2 accused to be given bail by the High Court. The discussions encouraged magistrates to make clear observations during the proceedings and for the High Court to make reference to these proceedings before arriving at a decision. ‘There is no judge ( at High Court) in their right mind, seeing all that sordid detail (recorded by the magistrate), see the age of this child, see that that the child has testified and that the evidence is water tight and proceed to give bail, especially when the accused are street persons with no fixed abode” stated Hon. Lady Justice Teresia Ngugi. On a positive note, one judge recounted how she denied bail to an adult female accused of defiling an under age male- there is a misconception that because the accused perpetrator is female, it is easier for her to get bail. The boy child must be protected and not forgotten – sexual violence is not only about protecting women and girls. Examples abound of proactive judges and magistrates who stop advocates from asking victims sexist questions.
Also discussed at length was the need for psychosocial support for magistrates and judges who are human, and do get emotionally affected and traumatized by the SGBV cases before them , the need for an inter sectoral approach in matter SGBV , that is linking the roles of the police, the courts, the DPP and prisons. More substantively , the retreat proposed rules to be used as guides when presiding over SGBV matters and what judges can do through CUC’s in raising awareness to the general public about SGBV.
A heated discussion was held about situations- which are quite common, where 2 under age children out of curiosity engage in sexual activity, and there being no criminal intent from either party. It was felt by some participants the law punished the boy child unfairly – because in most cases the boy is persecuted and the girl let to go home. In the Teddy Bear Case, the judge found that 2 children within the same age range engaging in consensual sexual activity is not criminal- rather part of the development of young adults.The court struck down as unconstitutional the provisions of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 that made it a crime for children between the ages of 12 and 16 to engage in consensual sexual activity with other children in the same age range.
The retreat was given a shocking reality as to the cost implication of SGBV- from a costing study done by the National Gender and Equality Commission – from a service providers point of view. 1 case of SGBV cost the country KES 45,000. Therefore much more needs to be done to prevent cases of SGBV.
Kituo takes this opportunity to thank everyone for the work involved over the years in developing this curriculum, starting with the Kenya Women Judges Association to now the JTI and the robust support by Civil Society. We are indeed closer to having a more sensitized and aware bench on matters SGBV. It is hoped that by the end of this year, the curriculum will have been finalized.
Advocacy, Governance and Community Partnerships.