Kenyan Judge Said Juma Chitembwe’s court ruling where he overturned a 20-year prison sentence of a man who had sex with a minor has been dubbed the world’s worst for the year 2016.
The case involved a 24-year old man named Martin Charo who was initially sentenced to 20 years behind bars for defiling with a 13-year old minor girl.
However, Justice Chitembwe ruled in the rapist’s favour saying that the child seemed to be willing to have sex with the defendant judging from the frequency at which she visited his house.
The ruling has now thrust him into the international spotlight after it was awarded the Golden Bludgeon in Spain on Wednesday by Women’s Link Worldwide. Chitembwe’s ruling which has been appealed by the state beat 18 other cases to the big prize.
According to Kenya’s Sexual Offences Act, “a child below 18 years old cannot cannot give consent to sexual intercourse and therefore all intimacy with children willing or not is defilement.”
However, Chitembwe defended his decision saying that though the girl appeared as a 14-year-old, her actions were like that of an adult.
“Where the child behaves like an adult and willingly sneaks into men’s house for purpose of having sex, the court ought to treat such child as a grown-up who knows what she is doing,” the Justice said.
Chitembwe arrived at his decision from the girl’s evidence saying that “She had known the appellant for about 3 years. She dodged her brothers after going to the beach and sneaked into the appellant’s house.”
He added that “She seems not to have been complaining about the incident. She had only gone to the appellant’s house to have sex and go back home, only for her brothers to interfere. She opted to return to the appellant’s home where they continued having sex. She the decided to home. She told her father where she was.”
Thus, he threw his conclusion saying; “It would be unfair, to have the appellant serve 20 years behind bars, yet the girl was after sex.”
However, Chitembwe conclusion became a subject of controversy. In May 2017, Dr Franseschi of Nairobi’s Strathmore Law School made Chitembwe’s ruling his subject on a Saturday Nation commentary.
The Dr explained that in a bid to balance the bias in the nation’s “poorly drafted” Sexual Offences Act, Chitembwe might have exposed Kenyan minors to the risk of being sexually exploited.
The Women’s Link Worldwide castigated Chitembwe ruling, saying that it established “a dangerous precedent assuming that girls who consent to sex before age 18 should not be afforded special protection and suggested that girls who do not report sexual violence immediately after the incident may be lying.
The organisation also issued the second World’s Worst Court Ruling Award aka Silver Bludgeon to an Italian’s court decision that acquitted a man who raped his co-worker on the basis that the woman was unable to prove her case for not screaming loud enough for help.
A supreme court’s ruling in the Phillippines came third-place for banning the use of certain kinds of contraceptive methods, thus denying women the right to freely chose given the limited options granted.