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"id": 252053,
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"speaker_name": "Mr. M. Kilonzo",
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"content": "Mr. Deputy Speaker, Sir, the law that is supposed to govern this very sad situation was, in fact, enacted in 1930. It is Chapter 63 of the Penal Code. It came into force on 1st August, 1930. That law, my good friend, Senior Counsel, the Attorney-General, will confirm, covers all the April 26, 2006 PARLIAMENTARY DEBATES 745 offences referred to as rape, abduction, indecent assault, defilement, incest and so the so-called \"unnatural offences\". The amazing thing, and the Attorney-General will confirm, is that these are offences called \"offences against morality\". That means, the colonial administration that was passing this law in 1930 was not, in fact, addressing the grave situation this country is facing today. They were talking about immorality. As you know, \"immorality\" includes lying, or taking a sweet from Nakumatt Supermarket without paying for it. Are we going to compare the morality of 2006 with that of 1930? I say with conviction that we cannot afford to do so. The moment of truth has come. It is time for this country to seize the moment and create a law that addresses the problems that are bedeviling us. Mr. Deputy Speaker, Sir, as you very well know, August 1930 was between the two great walls. The nations of the world had fought in 1914. In fact, Adolf Hitler had not even come to power in 1933. Even the Second World War, which broke out in 1939, had not been fought. If you are getting frightened about the law that will govern the violation of our women and some of our men, then it is understandable because, the legal theory that existed in 1930 can no longer hold water in this country. The punishment philosophy cannot be found to hold any water in a country like this one. The time to change the practices envisaged by Chapter 15 of our Penal Code is now. As I will be demonstrating, there are people in the country who are frightened by this Bill, thinking that we are going to introduce a law that will interfere with marriage or one which permits things like sodomy, et cetera . I would like to persuade them that this is hardly the case. We are introducing a law that will cover and protect people, as I will be demonstrating. Mr. Deputy Speaker, Sir, the law that we have under Chapter 15 of the Penal Code was borrowed from England as well as India in 1930. If you remember, at that time, it was said that the British Empire was such that the sun never set. Obviously, as people have said, this is because God could not trust the British in the darkness. Unfortunately, I dare say, the British and the Indians have since amended their law to make it possible to deal with the problems we are facing. Only this morning, in England, a man called Steven Air, before a jury, was convicted and jailed for life for raping a ten-year-old boy. My challenge to this House is to create the sort of law that would make it possible for a ten-year-old boy to complain of rape, and the man is convicted and sentenced to life imprisonment. I am afraid to say that, looking at the current law the way it is, this is easier said than done. Mr. Deputy Speaker, Sir, therefore, the country is crying out to us. Let us take the example of women. I was taught criminal and procedural law by the late Otton Chirwa, the first African Queen's Counsel in Africa and a former Attorney-General of Malawi. At the time, he was practising law in Dar-es-Salaam, in exile. Our Attorney-General here will confirm that. I do not know whether he was the late Chirwa's student. Perhaps he was. The fact of the matter is that, in the course of his practice, which I used to attend, it was clear that he was also defending people charged with sexual offences. The experience that I went through, seeing the trauma facing these young people because of being subjected to the judicial criminal law system was such that since that day, I have refused to accept to defend any person charged with a sexual offence because the trauma is dramatic. Mr. Deputy Speaker, Sir, you only need to meet a person who has been raped to understand the gravity of this act. In your hands will be a person who can very easily commit suicide. That person's human dignity and prospects are shattered. As a matter of fact, a lot of rape victims - it has been shown by psychiatrists - end up more or less becoming prostitutes, or taking sex very casually, or not trusting men, or not even getting married. Mr. Deputy Speaker, Sir, the trouble is that in 1930, the sexual organs of human beings 746 PARLIAMENTARY DEBATES April 26, 2006 were not instruments of mass destruction. As I speak here, they are. You only need to make a visit, not just to the Nairobi Women's Hospital, but to Kenyatta National Hospital and all provincial general hospitals to see the space that is occupied by persons suffering from HIV/AIDS. As a country, we are relying on donors for assistance in this particular damaging area. Those who read widely, particularly those who read magazines like the Economist, will have seen that this week's edition of the Economist has reported that the greatest contributors to any Gross Domestic Product (GDP) growth for now and for the future are women. In a country like Kenya, because of subjecting women to weapons of mass destruction, they are going to end up in our hospital beds and they are going to be abused. In rape circumstances, the victim has no way of verifying whether the attacker is suffering from HIV/AIDS. As a matter of fact, if you go to universities and schools in Europe, you will find that children are now encouraged to have condom dispensers in the compound, so that in case they are on a blind date and the boy turns sexually-oriented, they can, at least, offer him a condom in order to avoid this weapon of mass destruction. The fact is that to even argue about the need to modernise our law is to me, very surprising. Having been passed in 1930, this law is 76 years old. Therefore, if you look at it, you will be surprised that we have barely touched it. There were minor amendments to it before Independence in 1955 and 1961. There were also extremely minor amendments in 1967, 1968 and 1969. In 2002, and I must salute the Government for this, the Attorney-General introduced certain amendments which as you all know, in this House and they were passed. I am afraid because looking at Chapter 15, that was only scratching the surface. It was purely trying to stop haemorrhage. The actual operation had to come. As I said, we had to wait for \"Esther\" in the form of hon. Ms. Njoki Ndung'u to bring this forward for us. Mr. Deputy Speaker, Sir, we have the opportunity now in a non-political atmosphere, because nobody is going to say that this Bill has been introduced for politics or in order to favour on section. HIV/AIDS does not care whether you are a NARC or KANU hon. Member. It does not care whether you are a Catholic, Protestant or a Muslim. It strikes across the board. The most staggering form of HIV/AIDS is that which is conveyed to children under 18 years old because of sexual violation. Those people are defenceless. The second worst form of HIV/AIDS is that which is conveyed to women and men because of rape. The only way we can address this situation is to say: \"Thank Chapter 15 of the Penal Code.\" Although old is gold, the law has served the country, but it is time for it to go into retirement, so that the Independent Kenya can demonstrate to the rest of the world that we care about our people. Mr. Deputy Speaker, Sir, in 1930, the population of Kenya was barely four million people. We are now dealing with 33 million people. At that time, we were being governed by a colonial administration. We have had an Independent Government since 1963. The year 1930 was the golden age of African culture where the concept of HIV/AIDS was hardly known. There were elders in the village, for example, the King'ole in Ukambani and the Kiama in Meru. We do not have those structures any more. Urbanisation has made it impossible to resolve issues of this nature at the local level. Therefore, even as hon. Members consider that some of the punishments in this proposed law are severe, you must also understand that we have lost the social framework that we enjoyed in 1930; that made it impossible for somebody to go and attack a woman as she was walking home. As a matter of fact, in 1930, Nairobi was not even a city, it was just a collection of shanties. I am giving these figures to demonstrate the urgency that is required in considering this law. As a matter of fact, the limited commercial sex that there was in the country was limited to the introduction of those who had been engaged 30 years earlier in the construction of the railway line. Moreover, there was no HIV/AIDS. Although the statistics are not there, the African population was not taking drugs. It is drugs that have created the biggest problem. Drugs have April 26, 2006 PARLIAMENTARY DEBATES 747 made people not to make the choices that they need to make in sexual encounters. In this proposed law, we have introduced a clause whereby if a person walks into a bus, travelling from Kampala to Mombasa, and then uses Chloroform or other substances to make a woman lose her senses and engages her in sex, consent is deemed to have been denied. We have, in fact, suggested some element of burden be placed on the man to show that he did not use such substances. Mr. Deputy Speaker, Sir, in 1930, there were only brothels. If you look at Chapter 15, you will find that they talk about brothels. Nowadays, we have escort services. They even come in limousines. You should ignore what you hear about Koinange Street. That is only a scratch on the surface. The real action is in escort services. As you know, I respect the Media quite a lot. I was surprised last week to learn that the Daily Nation has introduced some sort of communication and when I read it, I could not believe it. Somebody was saying that she is beautiful, 31 years old, and she wants contacts. That is what we call escort services. This is a crime that is transforming itself. In the Bible, there are what used to be called \"temple prostitutes\". Now, it has changed so dramatically that you cannot afford to rely on a law that was passed in 1930. Above all, there was no internet. As you heard during debate on a Question that was brought to the Floor of this House by hon. Kajwang, and I salute him for bringing up this thing, the internet has become one of the biggest problems in fighting a crime of this nature. Right now, as we debate this Bill, if you talk to people from foreign countries, they have gone a step further. They are no longer talking about rape. They are talking about paedophile. They are talking about internet pornography. In 1930, pornography was limited to buying magazines. I do not know whether the Playboy magazine was under publication. Any time you opened it, in the middle, you would find a picture of a beautiful girl. When you went home you would dream over that picture. Things have changed! The Minister for Information and Communications has said that he is going to introduce broadband. That broadband comes with the ability to be able to access pornography from across the world. Therefore, even as we pass this Bill, and I speak with certainty and I am sure the Attorney- General will confirm that there will be a next step within the next one to two years, maybe even sooner, to amend this law to take account of pornography on the internet--- Hon. Wamwere, who is in America, has told me that he has seen in the streets of Nairobi foreigners with video cameras hiring our girls, and those girls are taken to rooms and are subjected to sex with animals, including dogs. Mr. Deputy Speaker, Sir, I do not want to remind the House of the story of Prophet Noah. God ended up bringing up the floods because He was tired of the evil. We do not want that to happen to us. We want to use this House to stop these activities and these people on their tracks. We want to make sure that our women are not abused because they are as important as you can get. Mr. Deputy Speaker, Sir, you can remember the story of Adam and Eve and the concept of the original sin, which has been used for centuries to suppress and oppress women, because everybody said that she is the one who went and picked the apple. We can no longer subject our women to this sort of thing. The time has come to recognize that a woman has a right to make a choice or decision to say yes, if she wants to engage in sexual activities. If a person crosses that boundary, we want to say it firmly, that Kenya has said \"No\". You must persuade that woman using your technique of persuasion. If you do not know how to do that and you cross that line, you will go to jail. The time has come for that because we need to liberate our women to be able to walk around freely. Mr. Deputy Speaker, Sir, only recently, an illegal organization in this country was confronting our women in the streets, threatening them that they are badly dressed and, sometimes, 748 PARLIAMENTARY DEBATES April 26, 2006 undressing them and forcing them into female genital mutilation. We cannot accept this sort of thing. Speaking to my good friend, the Attorney-General, I dare say again that, this Bill is only a first step. I am totally convinced that the time to bring Kenya, with regard to sexual offences, within the realm of the international community, is now. As soon as we pass \"Esther's Bill\", we will start looking at it so that we can modernise it with regard to the dignity and humanity of women, their Gross Domestic Product (GDP) role and their cultural and religious development. Mr. Deputy Speaker, Sir, may I remind the House that it has been shown that Kenya, among other African countries, is among those countries in which religion is growing at the fastest pace than anywhere else in the world other than South Korea. Therefore, it is a contradiction for this House to embrace religion the way we did last Friday; to embrace the Bible, the Qur'an and the Hindu Gita, but at the same time, refuse to modernise the law to block those things that the Bible, Qur'an and the Gita automatically outlaw. Rape is outlawed in the Bible and the Qur'an. On the issue of education, Mr. Deputy Speaker, Sir---"
}