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"id": 251010,
"url": "https://info.mzalendo.com/api/v0.1/hansard/entries/251010/?format=api",
"text_counter": 219,
"type": "speech",
"speaker_name": "Mr. Wako",
"speaker_title": "The Attorney-General",
"speaker": {
"id": 208,
"legal_name": "Sylvester Wakoli Bifwoli",
"slug": "wakoli-bifwoli"
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"content": " Mr. Deputy Speaker, Sir, I am entitled to more than 30 minutes, but I will take 30 minutes. The Mover of the Bill will respond to all the issues that have been raised. Clause 31 talks about circumcision. I just want to remind this House that under the Children's Act, this House has, in fact, passed a law on female circumcision, under Clause 14 of the Children's Act, which states: \"No person shall subject a child to female circumcision, early marriage or other cultural rituals.\" In fact, the law states that female children should not be circumcised. Adults can undergo that right voluntarily. There is nothing that stops them from undergoing that ritual voluntarily. The word that has been used, and which is very keen in this section, is \"forced\". It only becomes an offence where a person is forced, but not where a person undergoes the ritual voluntarily. Mr. Deputy Speaker, Sir, I support this Bill because it is now gender blind. Whereas rape under the current law is unlawful carnal knowledge of a woman or a girl, as amended under this Bill, it is now gender blind in the sense that even a boy or a man can also be sexually assaulted. Therefore, the definition of rape is gender neutral. This is progress, particularly when at this stage we hear of school boys being lured by sugar mummies and engaging in those acts and the sugar mummies go scot free. If this Bill is passed, the sugar mummies will also be charged with sexual assaults. So, the Bill is gender sensitive. We have figures to show that there is a rise in the victims of sexual offenses on the part of males. So far, it is 6 per cent and this figure is on the rise. We are not just passing this Bill to protect our sisters, mothers and daughters, but also our sons, fathers and brothers. We are passing this Bill to protect everybody. Mr. Deputy Speaker, Sir, the current law, of course, is dented towards women, but against men. I do not want to go into the details, but offences such as sodomy only carry a maximum sentence of 21 years whereas rape carries a sentence of life imprisonment. The current law does not take into account forced oral sex, which is now the emerging thing in the world today in order to avoid HIV/AIDS. The new definition of rape is comprehensive enough to cover all those things. I support this Bill because for the first time, we are having a proper definition of sexual assault. The Bill recognises that people are sometimes sexually assaulted using objects and animals to penetrate the genital organs. Of course, this type of sexual assault causes trauma to the victims. We are not spliting hair on this. Here in Kenya, we even have a case: The Republic versus Dan Ndeda Wamamba, where a man broke a stool and used the broken leg to penetrate his wife. We have also heard allegations involving the police where a woman says that she went to a police station, was tortured and made a confession because a bottle was used to penetrate her. These are the type of things which this law is coming out very clearly against. Mr. Deputy Speaker, Sir, the broadened definition of rape and sexual assault in the Bill has, therefore, effectively addressed this imbalance. I do not think that the sentences in this Bill are too harsh. A person charged with robbery with violence today carries a death penalty. That can mean that if somebody waves a knife at you and takes your earrings alone, that person can be sentenced to death, whereas if that person assaults a lady, that does not carry a capital punishment. The sentence can just be a few years in prison. We must look at that disparity because somebody who is charged with robbery with violence can get a capital punishment, but somebody who has done a more heinous crime of raping a child who is under 11 years old and depriving the child of forever having babies in future, can be sentenced for imprisonment only a few years. This should carry a capital punishment. I feel that the sentences are not, in fact, harsh enough. Mr. Deputy Speaker, Sir, research on African Customary Law shows that the offence of May 2, 2006 PARLIAMENTARY DEBATES 829 rape was treated very seriously. Amongst the Luhyia Community, it attracted a death penalty. In fact, no child was to be named after a person who had engaged in either rape or incest. In other words, that was the end of the life of the perpetrator. Amongst the Subas, it was death by stoning. Amongst the Kikuyus, it was death. The perpetrator was placed in a beehive and rolled down the hill. Amongst the Taitas, the uncle of the perpetrator was instructed to shoot him dead with an arrow. These were serious offences under our customary law. Therefore, our law today does not go far enough. In fact, what I have said about these tribes, goes even with equal force amongst the Luos, Kalenjins, the Kambas, the Somalis and everybody else. All the ethnic groups treated the offence of rape in a very serious manner. I do not think that the sentences that we have today under the Sexual Offences Act have gone as far as it is necessary to curb this offence, but we can make do with it. So, nobody should be heard to complain that the sentences under this Bill are harsh. In fact, I can quote the words of a 92 years old Taita lady who said: \"I do not understand in our days, because in our days, we did not wear any clothes and no man touched the girls. Today, you cover yourselves with everything and yet you are touched\". That shows you what we have come to. Therefore, the sentences are not harsh enough. Mr. Deputy Speaker, Sir, the sentences which are meted here are very similar to the ones in the Rwanda legislations. The sentences in Tanzania are even harsher than the minimum sentences that we have here. Here, the minimum sentence for the rape of an adult is ten years and in Tanzania, it is 30 years. Therefore, maybe the laws here have to be reviewed by the Committee on Administration of Justice and Legal Affairs to see if they can be made slightly harsher. Of course, the laws are quite similar to the United States laws on sexual exploitation and other abuses of children which attract a minimum sentence of ten years for the first time, 15 years for the second time and 30 years for the third instance. In Botswana, it is a minimum of life imprisonment. Mr. Deputy Speaker, Sir, I want to touch very briefly on the issue of the Evidence Act. There have been complaints on the Act. Section 163 (i)(b) of the Evidence Act proposes that it should be deleted. It provides as follows:- \"When a man is prosecuted for rape or attempted rape, it may be shown that the prosecutrix was of generally immoral character.\" That has been deleted and, in its place, we have Clause 39 which states:- \"No evidence as to any previous sexual experience or conduct of any person against or ---\" When I say, \"it has been deleted\", I mean it has been proposed to be deleted, if this House feels so. Mr. Deputy Speaker, Sir, there are two issues that arise here. The section that is proposed to be written is based on a judgement of the Court of Appeal in the case of Maina versus the Republic, where the then incumbent Chief Justice cautioned; and I quote:- \"It is really dangerous to convict on the evidence of the woman or a judge alone. It is dangerous because human experience has shown that girls and women, do sometimes tell an entirely false story which is very easy to fabricate, but extremely difficult to refute!\" Because of the comments of that hon. Chief Justice, we have a proposal to repeal that section. Mr. Deputy Speaker, Sir, generally, in criminal law, one is presumed innocent until proven guilty. In the course of the hearing, the accused previous conduct is never mentioned at all. That is because the court is supposed to judge the issues based on the facts of that particular case. It is only after the prosecution has proven the case, based on the facts of that particular case, and the person has been found guilty that his previous records come into play when it comes to the question of sentencing. That is the general principle of criminal procedure. It is there!"
}