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{
"id": 251073,
"url": "https://info.mzalendo.com/api/v0.1/hansard/entries/251073/?format=api",
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"type": "speech",
"speaker_name": "Mr. Raila",
"speaker_title": "",
"speaker": {
"id": 195,
"legal_name": "Raila Amolo Odinga",
"slug": "raila-odinga"
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"content": "Mr. Temporary Deputy Speaker, Sir, that is a very strong statement about what was happening in our society at that time. Today, I know that we would not allow such a record to be sold and that musician would be arrested and prosecuted. He would not be committing any offence known in law at the moment. Even if we were to arrest and prosecute him now, the court would still find him innocent. That is the reason why it is important for us, as a Parliament, to come up with laws that will protect our women. I have been to a police station and I have witnessed what Prof. Anyang'-Nyong'o was talking about earlier on. A woman came to complain that she had been raped and I saw how she was treated by the police. The policemen were just amused and wondered what she was looking for when she was raped. They implied that she was probably just playing with her husband. We do not expect a woman to find any kind of justice in the hands of those kind of policemen. That is why we need to put it in a law that has been put here in this Bill to compel those policemen to do something if somebody goes to complain about rape. Mr. Temporary Deputy Speaker, Sir, once upon a time, I was in prison and I shared a cell with some of people accused of rape. They told me very gory stories in the prison. One of them said that he was suspecting his wife of infidelity and he decided to punish her because, according to his tradition, once you are married, conjugal rights are your rights. A woman cannot deny you sex at any time. Instead of having sex with his wife, this man decided to tie one leg this side, and another leg the other side. He also tied her arms, took a knife and operated her clitoris. He completely disfigured it. That is also sexual assault as defined in this Bill here. I agree with my other colleagues who said that we need to do some amendments to this Bill. I am happy to hear that the Committee has done its work and that amendments will be proposed. I have in mind Clause 23 which states as follows:- \"Any person who undertakes any unlawful, unsolicited or unwelcome sexual advances or expects sexual favours, is guilty of the offence of sexual harassment.\" What is unsolicited or unwelcome sexual advances? One can just wag his tongue, shake his head or blink his eye, and that can be construed to mean unwelcome sexual advances and he can be imprisoned. I agree that as we come up with a law against rape, we should not criminalise sexuality. It should be possible for somebody to tell a lady that: \"I admire you, you are beautiful or you are very smartly dressed today\" without fearing that he will end up being prosecuted for sexual offences. Mr. Temporary Deputy Speaker, Sir, I also have an issue with Clause 24. I agree that it needs to be reworded. Clause 30 has to do with offences within the precincts or premises of corporations, societies, et cetera . That suggests that, if you own a hotel and somebody is raped in that hotel without your knowledge, you could be prosecuted. This is pushing it too far. I would like to see that amended. Mr. Temporary Deputy Speaker, Sir, in Clause 31, I want to buy the argument by the Attorney-General. That clause has been criticised by a number of my colleagues. They have said that it does not belong to The Sexual Offenses Bill. As the Attorney-General rightly pointed out, the Children Act has already criminalised female genital mutilation (FGM). This one here is merely talking about forced female circumcision. If the lady volunteers to be circumcised, there is no offence committed. We are talking about forced female circumcision. The lady should have the discretion to decide whether she wants it or not. I do not see why my fellow men should be objecting to that. The men are not even concerned. It is the women who are involved! Mr. Temporary Deputy Speaker, Sir, there is a clause that talks about the burden of proof. It has been said that it is contradicting Section 77 of the Constitution of Kenya. It is shifting the 842 PARLIAMENTARY DEBATES May 2, 2006 burden of proof from the prosecution to the accused. But as the Attorney-General rightly says, that must be read with Section 82 of the Constitution - discrimination. The law says that you are innocent until you are proved guilty by a court of law. There must also be a presumption that you are honest and of moral rectitude until you are proved to be a liar by the defence. But Section 163(b) of the Evidence Act implies that the complainant is a potential liar. That is discrimination against women. That is the wrong that is intended to be corrected by Clause 39. To that extent, I fully support the inclusion of this clause in the Bill. We have also heard the Attorney-General rightly say that there are rulings of the High Court which discriminated against the complainant. We need to empower the people who are complaining. It has been held in several other jurisdictions that, somebody who has undergone rape is very traumatised. There is an observation that was made in a court in Ontario, Canada. The judge had this to say:- \"Rape is unlike any other sort of injury incurred by accident or neglect. Survivors of rape must bear social stigmatisation, which accident victims do not.\" Mr. Temporary Deputy Speaker, Sir, accident victims would readily come and say exactly what happened to them. But somebody who has been raped would not talk about it because it is shameful. That is why there is need for special protection. There is something else that has not been provided for in this Bill. That is the children who are born out of acts of rape. This Bill is completely silent about it. I would have liked to see a provision made in this Bill that requires the rapist to provide for the child until it becomes an adult. That has been completely left out. We had cases of Kenyan women who were raped by British soldiers."
}