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"id": 251421,
"url": "https://info.mzalendo.com/api/v0.1/hansard/entries/251421/?format=api",
"text_counter": 331,
"type": "speech",
"speaker_name": "Mr. Kembi-Gitura",
"speaker_title": "The Assistant Minister for Agriculture",
"speaker": {
"id": 242,
"legal_name": "James Kembi Gitura",
"slug": "kembi-gitura"
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"content": " Mr. Temporary Deputy Speaker, Sir, I was examining Clause 23 on page 367. It talks about unlawful, unsolicited, and unwelcome sexual advances. That begs a question and assumes that, therefore, there must be lawful, solicited or welcome sexual advances. The question is: What exactly does that mean? Where do we draw the line? If you make sexual advances at a woman or she makes advances at you; at the moment she says \"no\", and you withdraw and go your way, have you already committed a sexual offence? Is there anything else that you can do after that which is a mitigatory offence? What is the position in that? There are dangers of words. I say that because the terms as used here; \"unlawful\" and \"unsolicited\", always assume that there can be solicited sexual favours. 796 PARLIAMENTARY DEBATES April 27, 2006 Mr. Temporary Deputy Speaker, Sir, I submit that Clause 25, of the Bill is superfluous and should be struck out completely. I say that because it states: \"Conduct by a person which would otherwise be an offence under this Act against another person is not an offence under Section 24 if, immediately before the position of authority or trust arose, a sexual relationship existed between that person and the other person.\" That contradicts the clause that has been discussed in length by hon. Kajwang, about the evidence on character. The Bill says that I cannot, as a lawyer, or as an accused person, discuss the character of a woman who has laid a complaint against me. That is the position. Time will bear us out on that one. The largest number of complaints, unfounded ones, will not be of rape because rape is a completed offence and you have to show a lot of evidence, including taking of DNA tests. Attempted rape leaves no residue, and there need not be penetration for an attempted rape. And still, if she can lay that claim and sustain it against a person, the person gets a 10-years jail term; it is dangerous because if you look at Clause 38, you will see that they are removing the necessity for corroboration. The moment corroboration is removed, then any offence of attempt becomes very easy to deal with because it will be the word of one person against the other. The point I am trying to make is that we need to be very careful as we move on to pass this Bill. One argument that we have heard this afternoon, and yesterday, regards Clause 31 of the Bill. If I remember very well, under the Children's Act, circumcision of women is outlawed. If a child is defined in that Act as a woman of less than 18 years, then it is because she is unable to give her own consent. What does Clause 31 mean on page 375 when it says in part: \"Any person who engages in, or carries out forced female circumcision is guilty of an offence and is liable upon conviction to imprisonment for a term of not less than five years or a fine of one hundred thousand shillings or to both.\" What does the word \"forced\" mean in that context? Is there any lawful circumcision for a woman of less than 18 years? I see a major contradiction in this clause. I, therefore, would wish to recommend that the whole clause be removed because it is superfluous. If you look at Clause 26, you will see that it is a clause that is worded in an interesting way. It says: (1) \"A person who commits an offence if - (a) he or she intentionally poses his or her genital organs; and, (b) he or she intends that someone will see them and be caused alarm or distress. (2) A person guilty of an offence under this section is liable on conviction to imprisonment for a term of imprisonment of not less than two years or to a fine of not less than fifty thousand shillings or both.\" That clause does not say whether that has also to do with man and wife or if it applies to everybody. If it has to do with man and wife, then it is an extremely dangerous clause because it does not say what happens if that is done in the privacy of the home of a husband and wife. I am not trying to impugn this Bill; I am only trying to say that we must take care that we do not do things which should not be done. Before I finish, I would like to look at Clauses 38 and 39. I talked about Clause 38 as pertains to corroboration. Corroboration has been time-tested. The reason for corroboration is that for a serious offence like rape or defilement, where one stands to be jailed for 10 years, then, the question is; is it fair that anyone should be convicted on the evidence of a child of eight years without any more evidence because she says that she thinks someone did it? I find that to be a very dangerous provision, and the way it stands, it is very difficult for many people to support this Bill. Clause 39, which I had alluded to earlier, is also one of the most dangerous in this Bill. It is the one I had referred to earlier about character. If, in evidence, I am not allowed to deal with, and April 27, 2006 PARLIAMENTARY DEBATES 797 test the character and veracity of the person complainant against me, that removes the filler of the law of evidence. The reason our forefathers brought in the issue of character as a test is because through it, you can know if a person is a habitual complaint in such offences. If a woman complains two to four times and it is on record in court, against two to five men, in similar line of offences, what would be so special that she is the only one that sexual offences are committed against? If I am not allowed to test the character of a complainant, then I see no effect of going to court to defend anybody. Clause 39 Sub-section 4 says in part: \"A court shall not grant an application referred to in subsection (1) if in its opinion, such evidence or questioning; (a) relates to the sexual reputation of the complainant and is intended to challenge or support credibility of the complainant.\" How can that be? If I cannot challenge the credibility of a complainant by bringing out, as it were, a printout of her sexual character, and say that she is serial liar, and prove that she did that to so-and-so last year, and now she is doing it to me; if I cannot say that she could be doing it for gain as a matter impinging on her character, that is not fair. The clause moves on to say in (b); \"is sought to be adduced to support an inference that by reason for sexual nature of the complainant's experience or conduct, the complainant - (i) is more likely to have consented to the offence being tried; or (ii) is less worthy of belief.\" Why can I not adduce evidence to show that the complainant was more likely to consent to what she is complaining about? Why can I not adduce evidence that the complainant is less worthy of belief? What are we protecting? If she is less worthy of belief, then it must tilt against her. Finally, I would like to touch on the issue of maximum sentence. I appreciate very much the seriousness of this offence and the need to jail defilers of our daughters, even to a maximum of life imprisonment. However, the magistrate should be allowed the discretion to steer from the maximum penalty. There are so many extenuating and mitigating circumstances. When a child of, say, 17 years is unfortunately drunk with alcohol, he is unlikely to behave like a man of 45 years or so, who is also drunk after consuming the same amount of alcohol in terms of discretion and just the way they carry themselves around. Is the magistrate or judge not going to be given a discretion not to jail my son for ten years, but, perhaps, to send him to an institution, warn him or commit him to community labour in order to appreciate the gravity of the offence and put the fear of God in him so that he does not repeat it as opposed to destroying his life forever by jailing him for 10 years without an option of a lesser sentence? The point I am making is that whatever we may think of our courts, if you say that this is the minimum sentence and you remove the discretion of the court, we may end up doing more injustice than the justice that we hope to bring about. One of the major maxims of the law is that better 100 guilty people go free than one innocent person to be jailed. Mr. Temporary Deputy Speaker, Sir, with those few remarks, whereas I support this Bill in its core value, I am unable to vote for it in its present form. It needs to be re-looked at."
}