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"id": 252033,
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"speaker_name": "Ms. Ndung'u",
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"id": 361,
"legal_name": "Susanna Njoki Ndung'u",
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"content": "Mr. Deputy Speaker, Sir, the issue of sexual violence in this country came home to me when I talked to one survivor. Initially, I did not think she was a survivor. I thought she was just like me; an interested individual who had come to the hospital wanting to help. I learnt that she is a professional banker who lives in a gated community in one of the safer areas of Nairobi where many of us hon. Members live. She was abducted outside her house. She had just parked her car and had gone to greet her neighbour. A car kept moving up and down in the compound. Since it is a gated community, she thought it was safe. The next thing she knew she was asked to enter the car at gunpoint. There were three men in the car. They took her to Ngong Forest where they repeatedly raped her. After that they took her mobile phone and dropped her at the bus stop. They gave her Kshs200 and told her: \"Go home. We only just wanted to taste what a woman of your social class is like.\" That woman was unable to leave her house for three weeks after that. She was too scared to go out in her own compound in the gated community. In the end, she resigned from her job. Mr. Deputy Speaker, Sir, to me, the story was such an overwhelming shock because she was like me. In fact, she was me. I did not sleep for many nights after that because it had come home to me. I want to inform Members of Parliament that it can happen to any one of us. At that point, it became necessary to interrogate what is happening to this country. Why is it happening? That thought was the genesis of this Bill which is before the House. Mr. Deputy Speaker, Sir, my research into why this is happening in Kenya is based on various reasons. One, there is excessive consumption of alcohol and drugs in this country. There is great abuse of drugs because they are very cheap. A stick of bhang is retailed for Kshs5. We also have institutions such as pharmacists and chemists that are now giving drugs which should not be sold over the counter and which are being used to spike drinks and initiate drug rape. The other reason why we are having this problem is because there is increasing insubordination and disrespect of women. Women are treated as sex objects. There is increase in domestic violence within homes and sexual violence is one of them. There are also the issues of early marriages and unequal status of women. Thirdly, one of the reasons for this problem is the raging poverty which is increasing insecurity. People are being forced to live in slum areas. They live in congested areas with poor infrastructure and poor lighting. These are areas where rapists will prey. There is also the glaring impunity of criminals with regard to existing laws. There is lack of deterrence, interference with investigations and intimidation of witnesses. The fifth reason is the laxity of the Judiciary in terms of punishing offenders. The abuse of discretion that magistrates use 738 PARLIAMENTARY DEBATES April 26, 2006 where they do not punish adequately is also a reason why we have this problem. Mr. Deputy Speaker, Sir, the increase of rape and sexual violence in this country is also due to the insensitivity and cultural and social biases of law enforcement officers in the handling of victims and prosecution of suspects. Many victims are humiliated at police stations and the police have failed to recognise that rape is a serious crime. The stigma and embarrassment of victims and their families has also resulted in under-reporting of these cases to the police. People are afraid of HIV/AIDS and of diminishing their future prospects of marriage. They are also afraid to expose abusive relatives. Lack of professional medical handling and understanding of victims is also a problem. Hospitals are very ill-equipped to deal with these kinds of cases. Another reason is the inefficacy of the prison system. Prisons are supposed to rehabilitate offenders but they are actually churning out very hardened criminals who come out and repeat the offence. Mr. Deputy Speaker, Sir, the other reason why we are facing sexual violence has to do with the loss of family values and the dynamics of moving from a traditional to modern society particularly where 72 per cent of the population comprises of persons under the age of 40 years. They are young, different and do not have the same cultural norms. It is a problem we need to address. We also have a poorly-structured legal framework within which to address the problem at hand and this must be addressed. We are lawmakers and policymakers. The country looks to us as national leaders to begin unravelling this situation. The fact that this Bill is before this House is a message to Kenyans that we do know that there is a problem and that we can do something about it. I am happy to see that we have decided, as a House, that through a Private Member's Bill we are addressing this issue. This Bill was initially brought to the House through a Motion which was seconded by the late Mr. Sasura. The public are well aware of how hon. Members were enthusiastic about bringing this Bill and addressing the issues at hand. I hope that, in the memory of the late Mr. Sasura, we will pass this Bill into law. May God bless his soul. Mr. Deputy Speaker, Sir, after the Motion was passed, I found myself in the complex, fairly unexplored world of developing a Private Member's Bill. Hon. Members, it is a very labour- intensive and expensive process. I would like to appeal to the Parliamentary Service Commission to take into account terms of support, in future, that will allow other hon. Members the independence and ability to bring more private Members' Bills if only the capacity can be provided for. I would like to thank the Embassy of the Netherlands, USAID, the Urgent Action Fund and Women in Law in Development in Africa for lending support towards the drafting of this Bill. Mr. Deputy Speaker, Sir, I must say I have enjoyed the support of the Law Reform Commission and the National Commission on Human Rights in terms of technical drafting. In particular, I have received enormous support from the office in charge of the implementation of this Bill. The Attorney-General allowed me to utilise his office in terms of technical support with regard to the specialised art of drafting legislation. I would like to pay tribute to Senior State Counsel, Tom Mark Mboya, who was the Chief Draftsman of this Bill. Sadly, I deeply regret that Tom Mark Mboya passed away last week and is not here to see his work being debated. May God rest his soul in peace. As I thank the Attorney-General for his support, I would like to appeal that, in the future, Ministers in the Executive should be more supportive in the same way so that we are able to generate more legislation not only through Government-sponsored Bills but through a partnership with private Members. Private Members have had an unfortunate history of their Bills either being killed by the Executive or being taken over in the most aggressive way by Ministers. I am happy to report that the support I have received was not only necessary but augurs well in terms of the April 26, 2006 PARLIAMENTARY DEBATES 739 relationship between the Front Bench and the Back Bench. We in the Back Bench also have ideas and we will be looking for your support. Mr. Deputy Speaker, Sir, what does the Sexual Offences Bill seek in a nutshell? Mr. Deputy Speaker, Sir, the general objective of this Bill is to define such issues as the crime of rape, attempted rape and defilement. The Bill also introduces 21 new sexual offences. The Bill is going to make it easier for victims to report and get medical treatment. It will also be introducing stricter penalties for sexual offenders by introducing minimum sentences in legislation. The question has been asked: \"What is the difference between the laws that we have and the proposed Bill?\" Currently, the law relating to sexual offences is spread through four different legislations. It is spread in The Penal Code; The Criminal Procedure Code; The Criminal (Amendment) Act and The Evidence Act. That makes it very difficult for ordinary wananchi to access the laws and punishments for those offences. In this new Bill, all those laws are going to be consolidated and, therefore, it will be easier to access justice. The current law has a very limited definition of the crime of rape. It does not recognise that men and boys could be victims of sexual violence. The current legislation categorises rape as an offence and an issue of morality. The character and moral standing of victims can be adduced as evidence in a court of law. We have said that, that is unconstitutional. In fact, there is a Court of Appeal that has ruled it is unconstitutional to treat men and women differently, and to bring in the character of victims without focusing on the issue at hand. Mr. Deputy Speaker, Sir, the new laws introduced by the Sexual Offences Bill include the following:- Laws that protect children from trafficking, sex tourism, prostitution and pornography. There are laws that protect mentally-impaired persons from prostitution, provisions that punish incest by female persons, laws that punish the deliberate transmission of HIV/AIDS to others. There are also laws to determine who the courts should consider as a vulnerable witness. There are laws on administration of a substance with the intent to offend a person sexually, among others. Mr. Deputy Speaker, Sir, the Bill is arranged in the following manner. First, there is the title and the arrangement of clauses. Secondly, there is the short title which is an Act of Parliament to make provisions about sexual offences, the definition, prevention and protection of all persons from harm from other sexual acts. After the title, it follows the interpretation. The drafters, and myself, have tried to expand and to be as detailed as possible in terms of determining or defining issues such as genital organs, DNA and law-enforcement. The first offence that is dealt with under this Bill is the offence of rape. It has a clear definition, unlike in our current law. The proposal is that it shall hold a minimum sentence of ten years, and which may be enhanced to life. The crime of rape is thereafter followed by the crime of sexual assault which, like rape, is a crime whose critical ingredient is penetration, but which provides for other areas; for example, in situations where objects, bottles or sticks may be used in a sexual assault. Mr. Deputy Speaker, Sir, Clause 8 provides for the offence of defilement. It is the rape of a child. In terms of punishment, there are three categories. Where a child is 11 years or less, a person will be convicted to imprisonment for life. Where a child is between the age of 12 years and 15 years, a person convicted will be liable to imprisonment for a term of not less than 20 years. Where the child is between 16 years and 18 years, the person will be imprisoned for a term of not less than 15 years. I would like to point out that, originally, when the Bill was published, the punishment for defilement was one. But having listened to Members' concerns, I broke it down to those three categories when I re-published the Bill. Mr. Deputy Speaker, Sir, the other crimes which have been provided for under this law include gang-rape under Clause 10. We have taken that to be so important because gang-rape is 740 PARLIAMENTARY DEBATES April 26, 2006 typical of the rapes that we are addressing today. Those are rapes that are incidental to other crimes. Somebody breaks into your house and proceeds to rape your wife and children in front of you. That, in itself, should also be punished. At this stage, I would like to point out that it will also be a separate offence where a sexual offence is committed in front of one's family members. That is in recognition of the incidences that we are seeing nowadays. They are punitive. They are deliberately done in front of one's family members thus affecting the whole family - husband, wife and children for the rest of their lives. Mr. Deputy Speaker, Sir, Section 11 provides for the crime of indecent act to a child. I would like to point out that, after the discussions at Safari Park, Members pointed out to us that what was missing was the provisions for indecent acts against adults. At the time of the Committee of the Whole House, we will bring an amendment and include that. Mr. Deputy Speaker, Sir, the crimes of child trafficking, child sex tourism, child prostitution and child pornography speak for themselves. One of the new offences that have been introduced is the exploitation of prostitution. It is intended to target pimps and persons who force others into prostitution and working in brothels, as is common in urban centres. Mr. Deputy Speaker, Sir, Clause 18 introduces trafficking for sexual exploitation. Clause 19 deals with prostitution involving persons with mental disabilities. Clause 20, 21 and 22 focus on the issue of incest. I do not need to go into that because it is very clearly defined in the Bill. Clause 23 introduces a new sexual offence known as sexual harassment. When you look at that particular Section, it is important for hon. Members to read the Section as a whole. They should not read just a Subsection 1. They should read Subsection 2 to know that unlawful and unsolicited sexual advances spoken of in Subsection 23 mean those that happen in an environment of employment where rejection of such sexual offers can affect one's career, where rejection of such advances can result in an interference of an individual's work or educational performance. I think hon. Members would be satisfied because we know cases in offices, universities and institutions of learning where that happens. It is time that it became a crime punishable under the law. Mr. Deputy Speaker, Sir, of interest to hon. Members would be Clause 24. It talks about sexual offences in relation to positions of authority. This section intends that anyone who is a superintendent or manager of a jail, a remand home, a childrens' home or any person who is a law- enforcement officer and has somebody in their custody, a manager or staff of a hospital who takes advantage of a patient, any person being a headteacher, teacher, employee in a primary, secondary school or special institution of learning, who takes advantage of a person in his care like a student. This section states that, that person should be punished and be sentensed to an imprisonment of not less than ten years. The new offence that is introduced in Clause 27 should be of interest because it directly addresses some of the issues with regard to the HIV/AIDS scourge in this country. This clause criminalises the deliberate transmission of HIV/AIDS or any other life-threatening disease to another person, whether or not one is married. I am emphasising the word \"deliberate\" because there have been issues about what would happen where there is accidental infection either sexually or through contraceptives. But in this case, we are only talking about the \"deliberate\" transmission of a disease. Mr. Deputy Speaker, Sir, Clause 28 talks about drug rape. If you look at it together with Clause 29, not only will the person who actually gives the drug be punished, but the person or company or pharmacy or chemist or hospital that provides that drug to be used in that manner will also be punished either by a jail term or a fine. In Clause 30, it will become an offence for managers in any institution to knowingly conduct the affairs of their institutions knowing that sexual offenses have been taking place in their April 26, 2006 PARLIAMENTARY DEBATES 741 premises and have done nothing to prevent them. So, managers will face a minimum sentence of ten years or a fine of not less than Kshs1 million or both. Clause 31 provides for forced female circumcision. This clause is not addressing circumcision of children. The circumcision of children, that is those who are under 18, is already addressed in the Children's Act. This clause addresses female circumcision which is forced upon women in their adult life. Similar intentions are carried in Clause 32 where we are outlawing cultural or religious offenses. This is to address traditions such as the belief that you are cleansing yourself of HIV/AIDS by sleeping with children or forcing people to sleep with corpses. Clause 33 addresses an offence that can be committed by persons who have left jail; people who have been convicted of sexual violence. The thrust of this clause is ensure that once convicted offenders leave jail, they cannot work in places where there are children or vulnerable persons. If they do so without stating that they are previous offenders, they will be charged and fined in court. Mr. Deputy Speaker, Sir, from Clause 34 onwards, we are dealing with issues of evidence. We have provided for vulnerable witnesses. We have also provided for protection of witnesses, including from the media in as far as their identity is concerned. We have talked about how complainants should be treated, if they need to testify in court or if they need somebody to guide them in court."
}