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"id": 251412,
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"speaker_name": "Mr. Kembi-Getura",
"speaker_title": "The Assistant Minister for Agriculture",
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"legal_name": "James Kembi Gitura",
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"content": " Thank you, Mr. Deputy April 27, 2006 PARLIAMENTARY DEBATES 793 Speaker, Sir. The issues raised in this Bill are important. The generality of the intentions meant to be accomplished is very important. In this House virtually all of us are parents. We all know how bitter and sad it can be if your daughter is raped or your son is caught in a rape case. Therefore, this is a Bill that all of must look into carefully and deal with very passionately. There cannot be a sadder occasion for a parent than when their daughter is raped, or their son is jailed for 10 years on allegations of rape. It is, therefore, a situation we must look at from both sides. As parents, we must take care of our sons and daughters . Rape, defilement or any other sexual offence is very serious, and must be taken very seriously. Rapists and other offenders of this nature, in truth, need to be removed from the society. They should be jailed for as long as possible and removed from our society. We are law makers, but however serious an offence appears to be, we must deal with it within the law. It would be irresponsible of us, as law makers, to allow this Bill to go through in its present condition. There are several things that we need to look into. We know that the intention of the Bill may have been good in the first instance. My serious and sincere advice to the Mover of this Bill is to consider withdrawing it, take it back to the relevant Committee so that it is looked into afresh to avoid it being thrown out all together by this House. It will, indeed, be sad if the whole Bill is thrown out, which is likely, if it remains in its present form. Mr. Deputy Speaker, Sir, you know that a lot lobbying has been done about this Bill. I do not say that there is anything wrong with lobbying for any Bill in this House. When I received an e- mail from the Kenya National Commission on human Rights, telling me to sign and say that I support this Bill, otherwise my name will be published to show whether or not I supported it, I thought this was the height of irresponsibility. I must take a position and must be able to express myself and say why I support this Bill, or why I find it impossible to accept it in its present form. As hon. Members, regardless of what anybody may think of us, including what has been thought of us in the recent past, we owe a duty of care to the people we represent and the nation at large. Therefore, we should not be made to fear to argue or present views on a certain Bill. I cannot oppose or favour a Bill because of the fear of what the people I represent may think of me. If my conscience does not tell me that this is a Bill I should support, then I regret to say this, that whatever anybody thinks of me, I am going to say \"no\" when I must say so, or when I am called upon to say \"no\". Many of my colleagues have argued very ably about this Bill. I commend what they have said about it. I am going to look at the legal aspects of this Bill. Is this a Bill that can pass the test of time? Is it a Bill that we are going to pass and five months later we are back here to amend it? If we do that, then we will have negated our duty as law makers. I really appreciate what the Minister for Justice and Constitutional Affairs, Mrs. Karua, said. This is one Bill that shows that law makers are taking their work seriously. Every hon. Member, who has contributed, has taken the Bill clause by clause. They have read it because they wanted to understand it. They do not wish to support a law that is going to impact negatively on this nation. So, what kind of Bill do we have in front of us? Those of us who are lawyers know the shortcomings of this Bill. I have defended rape and murder cases in court, and know exactly what happens in courts. Our fore fathers cannot have been extremely wrong when they said that he who alleges must prove. That is why the burden of prove generally lies with the complainant. Only in very exceptional cases - I know that the Constitution allows for such cases - are we allowed to place the burden of proof on the accused? Mr. Deputy Speaker, Sir, if you look at Clause 8 on page 399 of the Bill, you will find that it says: \"Section 123 of the Criminal Procedure Code is amended by inserting the words defilement, gang rape, deliberate transmission of HIV/AIDS or any other life- 794 PARLIAMENTARY DEBATES April 27, 2006 threatening sexually transmitted disease\" immediately after the word treason\" If you look at the relevant section of the Criminal Procedure Code, which, unfortunately, is not reproduced in the Bill as it should have been, you will see that the offence of defilement and gang rape have been made unbailable. Mr. Deputy Speaker, Sir, if this is the question, obviously, the whole Bill might face the risk of failing because of being unconstitutional. At Clause 8 of the Bill, a child is defined as a person under 18 years. If you then look at Clause 47(4), at page 393 of the Bill, it says that a child under 18 years cannot appreciate the nature of an act whether of penetration or whatever else. That begs the question: If that is the position, why then would punishment be different? If a person under 18 years is a child and is, therefore, unable to appreciate the act complained of, then that kind of person cannot give consent of any form at all. Therefore, in the drafting of this Bill, it means that, that child who is less than 18 years is not capable of granting consent. This begs a question, regardless of what my friend, Mr. Kajwang, said; that 16 years should be the age of discretion. Why should the punishment of any child up to 18 years be different if that person is not able to appreciate the consequences of the act?"
}