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{
"id": 251015,
"url": "https://info.mzalendo.com/api/v0.1/hansard/entries/251015/?format=api",
"text_counter": 224,
"type": "speech",
"speaker_name": "Mr. Wako",
"speaker_title": "The Attorney-General",
"speaker": {
"id": 208,
"legal_name": "Sylvester Wakoli Bifwoli",
"slug": "wakoli-bifwoli"
},
"content": " Mr. Deputy Speaker, Sir, that is why we have said that there must be a balance between the victim and the complainant in criminal procedures. You cannot have rights to the victim to the exclusion of the rights of the complainant. You cannot! The general trend now is to emphasise that there must be a balance between the rights of the complainant and those of the victim. Sometimes ago, the rights of the victim were emphasised more than those of the complainant. That was so even when the complainant was harmed to the extent of being in the death-bed. Yet, we were concerned with the rights of the person who caused that injury. No! The time has come when the right of the victim must be balanced against that of the complainant. However, I am glad to say that, that particular case of Maina versus the Republic has been overruled in the case of John Mwashigandi Mukhungu versus the Republic. In that case, three eminent judges, whom I think we all have virtual respect for; Justice Richard Otieno Kwach, Justice Bosire and Justice O'kubasu hailed--- And here, I can do no better than quote what they said. They said:- \"We think that the time has now come to correct what we believe is a position which the courts have hitherto taken without proper basis, if any basis existed, for treating female witnesses differently in sexual offences. Such basis cannot be properly justified presently. The framers of the Constitution and Parliament have not seen the need to make provision to deal with the issue of corroboration in sexual offences. In the result, we have no hesitation in holding the decision which hold that corroboration is essential in sexual offences before conviction, are no longer a good law, as they conflict with Section 82 of the Constitution. Therefore, we hold that Maina versus the Republic is bad law. There is, therefore, need to amend the Evidence Act, so as to ensure that it is constitutional and does not unfairly discriminate against any category of crime victims, thereby denying them justice\". Mr. Deputy Speaker, Sir, this particular issue has also confused us a bit because, it has been stated here that it shifts the burden of proof to the complainant. The rules of evidence only permits that relevant evidence must be given. The temporary shifting of burden of proof is something provided for under our own Constitution. It does not shift the burden of proof in a case. At the end of the day, it is the threshold of \"beyond reasonable doubt\" being proved. But it temporarily just shifts that burden so that, the person who is in possession of those facts, should be able to explain to the court what those facts are. Our own Constitution allows that. Here, I quote Section 77, Subsection 12 Paragraph (a) of our Constitution. It reads:- \"Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this Constitution to the extent that the law in question imposes upon a person charged with a criminal offence the burden of proving particular facts\". May 2, 2006 PARLIAMENTARY DEBATES 831 So, our Constitution says that, there are situations in which a burden can be imposed on a person charged with an offence to prove certain facts. For example, offences of strict liability where you are found in possession of stolen property. Surely, it is you who has to do some explaining as to whether you knew that, that property was stolen. Mr. Deputy Speaker, Sir, also under our own Penal Code---"
}