A sexual offence is one defined under the Sexual Offences Act, Cap 62A (the Act). Among the terms used to define a particular sexual offence, certain terms are referred to. They include penetration and genital organ.Penetration is the partial or complete insertion of the genital organs of a person into the organs of another person. A Genital Organ is defined to include the whole or part of male or female genital organs and for the purposes of this Act includes the anus.,
The definition of penetration under the Act is insufficient because it presumes that a female sexual organ can penetrate a male sexual organ. This is physically impossible. The legislature may have defined while thinking of situations where a male person may be defiled/raped by a woman. It is therefore important to redefine the elements of a sexual offence to encompass what is physically possible.
Sexual offences are in offences against the dignity of any person. Laws such as the Penal Code defines and prescribes punishments for offences such as rape and defilement.
However, the principal law on sexual offences in Kenya is the Sexual Offences Act, which derives its authority from the Constitution of Kenya, 2010, the supreme law in the country.
Article 3 of the constitution provides thus:
“Supremacy of this Constitution.
(1) This Constitution is the supreme law of the Republic and binds all persons and all State organs at both levels of government…
(4) Any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid…”
It is therefore important that all law be in conformity with the Constitution, lest they be void for such non-conformity.
Article 50 (2) (n) and (p) of the Constitution further provides that an accused person shall
“not to be convicted for an act or omission that at the time it was committed or omitted was not—
(i) an offence in Kenya; or
(ii) a crime under international law…
to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing…”
Transitional provision 3 under the Act provides that
“Any proceedings commenced under any written law or part thereof repealed by this Act shall continue to their logical conclusion under those written laws”.
The above provision contravenes the provision of Article 50(2)(p) of the Constitution
This means that a person whose charge was levied before the Act was passed can be punished with a sentence prescribed under Act.
Section 23 (3) [d] and (e) of Interpretation and General Provisions Act, Cap 2 Laws of Kenya provides a solution to the scenario above and states that:
Where a written law repeals in whole or in part another written law, then, unless a contrary intention appears, the repeal shall not:
(e) affect an investigation, legal proceeding or remedy in respect of a right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealed written law had not been made.
Section 38 of the Sexual Offences Act states that:
Any person who makes false allegations against another person to the effect that the person has committed an offence under this Act is guilty of an offence and shall be liable to punishment equal to that for the offence complained of.
This provision is very draconian. It does not consider the fact that a person may have a genuine complaint and may fear to present it for fear of prosecution. It also undermines the role of the police in such a scenario, which is to investigate before a suit is instituted. To make matters worse, the Act does not define what a false allegation is and leave room for speculation that an acquittal is also proof of a false allegation.
The Sexual Offences Act does not define actions or omissions which intend to insult the modesty of a woman as criminal. Repealed section 144(3) of the Penal Code provided that: –
“Whoever, intending to insult the modesty of any woman or give, utters any word, makes any sound or gesture or exhibits any object, intending that the word or sound shall be heard, or that the gesture or object shall be seen, by the woman or girl, or intrudes upon the privacy of the woman or girl, is guilty of a misdemeanour and is liable to imprisonment for one year”
This law helped to check forms of behaviour which may be interpreted as sexual harassment. However, there is no such provision in the Sexual Offences Act.
Other practitioners have also pointed out that the Act needs to make provision for cases where parties to a suit are young people within the same age bracket, say a boy of 19 years, and a girl of 17 years who have had sexual relations should not be penalised with the same intensity as that where a man in 28 and the girl is 17 and vice versa.
It is therefore important that these issues and more which cannot be fathomed by the writer at this moment be rectified by the Legislature. If we must protect our society for sexual offences, then the laws must be preventive, deterrent and corrective.
BY SASHA MUSIGI
This article appears in our law newsletter Vol 2 Issue 3 of February 23rd 2018. To receive The Deuteronomy in real time, click HERE