A Malindi High Court judge decision to set free a man convicted for defiling a 13-year-old arguing that the minor seemed willing to have sex with the man, has earned an international award as the world’s worst court decision for women’s rights in the past year.
On April 25, 2016, Justice Said Juma Chitembwe set aside a 20-year jail sentence that a magistrate court had handed to Martin Charo, 24, after convicting him of defiling the girl between December 2011 and January 2012 in Kilifi County.
The ruling was mentioned during the Gender Justice Uncovered Awards that recognises the best and worst court rulings on gender equality from all over the world.
The verdict by the Kenyan judge was voted the worst and awarded the Golden Bludgeon award by Women’s Link Worldwide, an international organisation of women in the legal fraternity. The State has since appealed against the ruling.
Justice Chitembwe’s ruling was rated alongside 18 other worst cases with an Italian court’s decision receiving Silver Bludgeon Award for acquitting a man who raped his co-worker after stating the woman did not scream loud enough.
Supreme Court of the Philippines decision to ban access to certain contraceptive methods, denying millions of women the right to freely choose what contraceptives to use was voted third worst court decision in the world last year.
In the ruling, the Kenyan judge acknowledged that under the Sexual Offences Act, a child below 18 years old cannot give consent to sexual intercourse but went ahead to overturn the 20-year jail term.
“Where the child behaves like an adult and willingly sneaks into men’s houses for purposes of having sex, the court ought to treat such a child as a grown up who knows what she is doing.
“She had gone to the appellant’s place to have sex and then go back home. She had known the appellant for about three years. She dodged her brothers after going to the beach and sneaked into the appellant’s house,” Justice Chitembwe stated.
He added: “She seems not to have been complaining about the incident. She had only gone to the appellant’s house to have sex and go back home only for her brothers to interfere. She opted to run away to the appellant’s parents’ home where they continued having sex for three days. She then decided to go home. She told her father where she was.”
The Judge ruled that “It would be unfair to have the appellant serve 20-years behind bars yet PW1 was after sex from him.”
He further ruled that the evidence does not show that the man knew that the girl was a student or that the he took advantage of her being a young girl adding that it was clear to him that “she started engaging in sex way before that date.”
Women’s Link Worldwide criticised the decision stating that he set “a dangerous precedent assuming that girls who consent to sex before age 18 should not be afforded special protections provided to children and suggests that girls who do not report sexual violence immediately after the incident may be lying,”.
“Despite the fact that the man is on trial for a crime, the Court focuses on the child’s behaviour alleging she acted as an adult characterizing her behaviour as sneaky,” the organisation stated.