These are penalties that one would hope would scare the wits out of any person who is at least of reasonably sound mind from conceiving the slightest idea of defiling a minor in Kenya, but judging from the rampant cases of defilement this is not so. The make-up of the society is that a parent gives birth to a child and natures it, teaching it to grow into a responsible human being. The teacher then takes up the responsibility of nurturing when the child is about four years of age impacting knowledge on the child.
The church impacts moral values on the child and the rest of the society moulds this child in preparation for greater responsibilities in the future. A child is a vulnerable member of society as they can barely survive on their own. The society is mandated with the responsibility of protecting the child but it has abandoned that responsibility and even those closest to these children are hurting them. About one in every five reported crimes around Limuru area was a sexual offence and most of them being defilement cases.
This disturbing practise has not only affected the girl child but even the boy child is no longer safe. The shocking revelation is that half of the defilement cases are by a relative followed by Close family friends, teachers and very few have strangers involved. Most of the children are defiled at their homes, at a relative’s house, on their way to school or to the shop. The home which was a safe heaven for every child is no longer safe and neither are the schools where these children spend the better part of their day.
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Several questions linger in the mind as one tries to figure out why Kenyan society has seemingly turned this way. Was this evil ever-present but just not reported in the way it is today? Is it a sad reality recently revealed, or a growing modern menace? Does it derive from ignorance, perversity, or just plain evil? Are these the tell-tale signs of the last days as described in the Book of Revelations as some would have it, or are they just illustrations of a decaying society? And how do we stop this abomination?
One does not have to be a devout Christian to hope a millstone will be cast about the neck of each and every perpetrator before they are thrown into the water. Neither does one have to be a reactionary to believe that the development of our modern society has had a role to play. Either way, this appalling issue has to be urgently addressed. 3. 0: BODY: 3. 1: DEFINATION OF DEFILMENT: Oxford dictionary: to damage the purity or the appearance of something. Sexual Offences Act: S. 8 a person who commits an act which causes penetration with a child. . 2: BACKGROUND OF SEXUAL VIOLENCE IN KENYA: The African man has always been viewed as superior to the woman. Most of the African cultures portray the man as a superior being who should be obeyed without question. On the other hand the woman is painted as a submissive creature availed for the pleasure of men. This is aptly demonstrated in most of the Kenyan cultures. For example, the kikuyu culture calls the man mundu murume the word murume is derived from the word urume which means extremely courageous.
In contrast, the woman is known as mutumia which is derived from the word tumia which means use. This is a major reason why the kikuyu man not only considers himself as the dominant sex but also sees a woman simply as a vessel for his use (Kariuki 2004). Most cultures portray the girl child as an investment and usually when her time to get married comes what matters is the bride price they will receive. Often when a girl is getting married her parents will advise her to obey her husband and take care of him lest he will demand back the bride price (Davison 1989).
The boy child on the other hand is brought up being taught that it is weakness for a man to succumb to emotion as it makes you like a woman. And as most men age, they learn to cancel out or deny erotic sensations that are not specifically linked to what they think a real man is to feel (Stoltenberg 1989:33). The boys are raised up learning that a man gives instructions that should be followed without question and even couple of Kenyan communities have encouraged chastising of women. Being a man is measured through violence and sex capability.
So, when masculinity is associated with aggression and sex conquest ,domineering sexual behavior and violence become not only a means of structuring power relations between men and women , but also a way of establishing power relations among men (Heise 1995). In Kenya, it reaches its most extreme expression possibly among the Gusii, for which LeVine (1959) wrote that all sexual intercourse was played as rape with women even in marriage expected to resist 3. 3: STATISTICS ON DEFILEMENT IN KENYA: * In 1991- in a mixed boys’ school, boys invaded girls’ dormitory and raped 70 girls leading to 19 deaths. 2 May 1992, 15 girls were raped at Hawinga Girls, Nyanza province. * A joint report by TSC and a non-profitable organization revealed that 12660 students were sexually abused by their male teachers from 2003-2007. Out of all these only 633 teachers were charged with sexual abuse. * In 2010 more than 1000 teachers were fired for sexually abusing girls. * In a standard newspaper article published on 09/02/2010 there was a story of a teacher who defiled a deaf girl getting her pregnant. * In 2004, 140 cases of students being defiled by teachers were reported, in 2008, 100 cases were reported and in 2009, 122 cases were reported. Out of every 100 rape cases handled by police, child rights groups, and selected hospitals, 40 were committed by fathers; according to the study conducted by the Chambers of Justice * Police statistics showed that rape and defilement were the most prevalent crimes in 2010 even as other offences reduced by 5%. * Out of 57826 crimes reported in 2010, 785 were rapes and 2660 were defilements. In 2009 729 were rapes and 2242 were defilements. * A report given by the media in 2005 showed the following results: MONTH| RAPE| DEFILEMENT| July| 33| 51| August| 10| 22|
September| 3| 28| October| 0| 15| November| 7| 18| December| 6| 27| TOTAL| 59| 161| * 42 cases of sodomy were also reported between July and December of 2005. 3. 4: PERPETRATORS: Several researches have shown that fathers are the greatest perpetrators out of 100 reported cases 40 are by fathers. Other family members, neighbors, teachers and gangs are also topping the list. A research paper titled, “A media coverage on sexual violence and its implication on educational leadership” carried out by J. wanjiku Khamasi & Wanjiru Muita showed the following results.
OFFENDER PROFILE BY NUMBER OF INCIDENCES REPORTED: In R v MICHINO NJOROGE, LIMURU SPM, CR 69 OF 2011, 08/06/2011. The accused person was a cousin to the victim. In R v GODFREY MUGENDI NYAGAH. LIMURU SPM, CR 926 0F 2011, 27/06/2011, the accused was a neighbour. In R v JOHN NJIHIA KAHURO. LIMURU SPM, CR 256 OF 2010, 30/06/2011, the accused was a cousin to the victim and he even impregnated her forcing her to procure an abortion as she had a heart problem which couldn’t allow her to carry the pregnancy at her age. In R v MOSES WAFULA.
LIMURU SPM CR 451 OF 2011,28/07/2011 The accused was a father to the victim. These are just a few examples of the many defilement cases in Limuru carried out by either a family member or a neighbour. 3. 5: AGE OF DEFILEMENT VICTIMS: Defilers are going for younger girls every single day. In Limuru the victims were aged between 9 to 15 years. In R v ANTHONY NJIHIA WANGARI. LIMURU SPM CR 401 OF 2011 29/06/2011. The victim was a 9year old girl. In R v CHARLES KIEMO LIMURU SPM CR 1130 OF 2010, 18/07/2011. The victims were boys aged 12 and 14 years.
In R v MOSES WAFULA. LIMURU SPM CR 451 OF 2011. 28/07/2011, the victim was a 10 year old girl. Researches have shown that even one month old babies are being defiled. ( J. wanjiku Khamasi & Wanjiru Muita) in a research paper titled “violence against women” by Winnie . v. mitulla show that in 1996, 9 children of age 2 – 4; 12 of age 5 – 7; 10 of age 8 – 10; 8 of age 11 – 13 and 6 of age 14 were defiled; whereas in 1995, 7 children of age 2 – 4; 13 of age 5 – 7; 22 of age 8 – 10; 7 of 11 – 13 and 10 of 14 – 16 were defiled. hese may not be the exact numbers but they paint a vague picture of how children are suffering in the hands of defilers. 3. 6: POSSIBLE EXPLANATIONS OF WHY DEFILEMENT IS ON THE RISE: 3. 6. 1: GENDER INEQUALITY AND PATRIACAL NOTIONS: The Kenyan society has been natured in a way suggesting that the man is superior while the woman is inferior and is meant to be submissive to the man. As a result most women lack the ability to protect their children from their abusive husbands. Some even leave their matrimonial homes due to the degree of suffering inflicted by their husbands leaving behind their children.
I was reading a blog ion the internet where a girl narrates her ordeal after her mother left due to constant beating by her father. As the first born she assumed her mother’s duties which included having sex with her father who forced her to share a bed with him. In R v MOSES WAFULA, LIMURU SPM CR 451 OF 2011, 28TH JULY 2011. The accused person actually threatened to kill the victim, who was his daughter, and her mother if he was sent to jail. The mother to the accused was quoted saying that his son was the man of the house and his wife had no right to question his actions 3. 6. : CULTURAL PRACTISES: Some of the cultural practises in Kenya have done more harm than good to the Kenyan child. An example is the Samburu community which practises a cultural practise known as beading. They justify this practise claiming it prevents promiscuity when instead it encourages incest. Beading means that a girl as young as 9 years old is engaged to a relative sometimes as old as her grandfather by use of traditional attires popularly referred to as beads. During the engagement, the admirer places a special necklace around the girl’s neck to signify he has officially booked the young one.
He follows this by bringing beads in large quantities which are also put in girl’s neck as a sign of official commencement of intimate relationship though it does not lead to marriage as the two are related. The “couple” is allowed to have sexual intercourse but pregnancy is highly forbidden. Incas it does happen, it has to be terminated immediately despite the high risks involved. Early marriage which has been a widely practised culture is also defilement in its own sense because girls as young as 5years are forcefully married to older men.
In a research paper entitled ‘gender, sexuality, and HIV’ a girl from Amhara Ethiopia is quoted saying that,” she hates early marriages as she was married off at five years and first had sex at 9 years. She says that her in-laws forced her to sleep with her husband who made her suffer all night and after that night whenever day became night she was worried that she would go through the same ordeal. ” In R v MOSES WAFULA, LIMURU SPM CR 451 OF 2011, 28TH JULY 2011. The victim while giving her evidence tried to withdraw her statement that her father had defiled her.
On realising this, the prosecutor informed the magistrate and when they carried out an inquiry it came to their attention that the victim and the mother had been threatened by the accused’s mother. When we were in chambers the magistrate told us that in some customs fathers have sexual intercourse with their daughters as a way of appreciating themselves for raising them up. It sounds so absurd but it’s actually happening. 3. 6. 3: POVERTY: Poverty in Kenya has become a reason for every social evil. Children have to look for casual work in order to assist their parents in meeting basic needs.
Incidences where a student was defiled while cleaning or fetching water for their teachers are very common. Aside from that some children are defiled and their defilers offer compensation to their parents who quickly take their money focusing on their economic problems. In R v JOHN NJIHIA KAHURO, LIMURU SPM CR 256 OF 2010, 30/06/2011. The accused was the victim’s cousin and he actually impregnated her. The father of the accused offered to compensate but luckily the victim’s mother in this case refused to accept it.
However very many defilement cases go unreported as parents prefer to take the money leaving this social evil unpunished. Powerful men in the society also defile young girls and go unpunished as they are able to bribe the police and magistrates earning their freedom. This encourages people with power and money to take advantage of children as they know they can easily get away with it. 3. 6. 4: CULTURAL& SOCIAL STEREOTYPES: According to the Pocket Oxford Dictionary, a stereotype is a ‘person or thing seeming to conform to a heavily accepted type’.
Sex-role stereotypes have also been defined as ‘the rigidly held and oversimplified beliefs that MALES & FEMALES possess distinct (and similar) psychological traits and characteristics. ‘Traditionally, the female stereotypic role is to marry and have children. She is also to put her family’s welfare before her own; be loving, compassionate, caring, nurturing, and sympathetic; and find time to be sexy and feel beautiful. The male stereotypic role is to be the financial provider. He is also to be assertive, competitive, independent, courageous, and career-focused; hold his emotions in check; and always initiate sex.
Owing to the expectation that men should be breadwinners in the family, men turn to aggression in an attempt to suppress their status and continue dominating their wives or their close female relations when they perceive an economic rise by them. This means that the woman remains dependant on the man and condones his violent acts. This affects the children as they have no one to protect them as their mothers are week. Most of these girls believe they should be submissive and end up not even telling anyone their ordeal.
Which is why some cases will go undiscovered unless the girl gets pregnant or contracts a disease. The woman is meant to keep herself for her husband and society views a lady who is not a virgin as lose. The value attached to female chastity is so high that even where a woman is a survivor of sexual abuse, the typical community response is to isolate and stigmatise her. The shame and stigma attached to sexual violence, and the lenient penalties meted out on offenders in formal and traditional judicial systems, silences survivors. 3. 6. 5: FAILED INSTITUTIONS:
The collapse of the rule of law in conflict situations encourages sexual crimes on a massive scale. The difference between the protector and the perpetrator is not clear anymore. The perpetrators and perpetuators of sexual violence in conflict and non-conflict settings are categorised into three groups. First the disciplined forces e. g. the police, army et. al. secondly family members and the community and thirdly the structures and institutions of protection (the government and its organs, UN, AU, and other humanitarian organisations).
It is often difficult to tackle impunity for sexual crimes committed during conflict because perpetrators and perpetuators often take up powerful positions in post-conflict governments. This gives them an avenue to intimidate their victims. The UN and similar institutions refuse to take responsibility for these crimes. Their correction policy often entails forwarding offenders together with reports on them to their respective countries’ judicial systems. This practise takes away any hope of justice for the survivors.
This is very evident in Kenya as very many children were defiled during the 2007-2008 post-election violence and 4 years down the line no justice has been granted. We are only hoping that the ICC can give the survivors some peace of mind but we all know that, that is still miles away from happening. 3. 7: LAWS GOVERNING THE PROSECUTION OF SEXUAL VIOLENCE AGAINST CHILDREN: 3. 7. 1: The Constitution of Kenya: the bill of rights S. 53(1) (d) states that every child has a right to be protected from abuse, neglect, harmful cultural Practises, all forms of violence, inhuman treatment and punishment and hazardous or exploitive labour. . 7. 2: Sexual Offences Act, 2006: defilement of a child: * Aged 11 years or less- life imprisonment. * Aged between 12-15 years- not less than 20years. * Aged between 16- 18 years- not less than 15 years 3. 7. 3: The Children’s Act, 2001: S. 13(1) provides that a child is entitled to protection from physical and psychological abuse, neglect and any other form of exploitation including sale, trafficking or abduction by any person. 3. 7. 4: The Criminal Procedure Code, cap 75 of the laws of Kenya: S. 186 3. 7. 5: The Employment Act, 2007: S. 6 3. : CHALLENGES FOR SEEKING REDRESS IN SEXUALLY ASSAULTED CHILDREN: 3. 8. 1: SLOW JUDICIAL SYSTEM: It becomes very frustrating for the complainant, the children, and those filing the suit on behalf of the children when a matter takes over two years to be resolved. The prosecution tends to seek endless adjournments for various reasons to wit, lack of police file, witness not being in court, absence of the doctor or the investigating officer amongst other things. Courts are supposed to be liberators but instead they have become instruments of subjugation. 3. 8. 2: P3 AND PRC FORM:
Defilement victims are required to fill a P3 form after being examined at a government hospital however the P3 form is not detailed and is inadequate to fill. The PRC form was introduced during the national reproductive health strategy 2009-2012 it was meant to replace the P3 form but some doctors have said it’s too detailed and it feels like a research tool, whereas the P3 Form is very basic as it catches the physical state and any injuries to the genitalia, with special reference to the labia majora, labia minora, vagina, cervix and also notes presence of discharge or venereal diseases.
The P3 form is supposed to be given free of charge but in some hospitals in rural areas it is sold at ksh. 1500 which they say is the doctor’s fee to go and testify in court and this makes some people prefer to spend that money on other basic needs rather than on a document. 3. 8. 3: POOR INVESTIGATIONS AND PROSECUTIONS: Police prosecutors have little knowledge on the essentials of evidence. This makes their prosecution very poor and the experienced advocates have a very easy time defeating the prosecution case. The police also tend to mishandle exhibits and there are endless incidences of missing police files.
There is also a lot of corruption within the police circles especially if the accused person is influential or one of them. 3. 8. 4: CONFLICTING MEDICAL REPORTS: When the victim is defiled they go hospital for first aid, they are then sent to a government hospital for the P3 form to be filled. In most cases the doctor who treat the victim and the one who fills the P3 form give conflicting reports putting reasonable doubt in the prosecution case. 3. 8. 5: CULTURAL AND SOCIAL STIGMA IN REPORTING CASES: In most Kenyan cultures topics on sex are still discussed in hushed tones.
The importance of a girl being married as a virgin is still over emphasized. This means that a defiled child is unclean and is hence stigmatised. In some cases the child is even blamed. Some parents silence their children as they believe if people know no one will want to marry them and if anyone does the bride price will be very little. This makes most people opt for other methods of conflict resolution. 3. 8. 6: IGNORANCE OF THE PUBLIC: Despite the many awareness programs and campaigns carried out most Kenyans still have no idea of what they should do in the case of sexual violence.
Most will not go to hospital as they do not know about the 72 hours policy. Others will clean the defiled child and the clothes they were wearing hence destroying evidence, making the police reluctant to prosecute due to lack of physical evidence. 3. 8. 7: GENDER DESKS: Police have no skills on how to handle cases of sexual abuse. There are minimum resources to equip and train police officers on how to effectively manage gender desks. 4. 0: CONCLUSION: 4. 1: POSSIBLE AVENUES OF DEALING WITH DEFILEMENT: 4. 1. 1: APPLYING THE EQUALITY PROVISIONS IN THE NEW CONSTITUTION: S. 9: entitles everyone to the right of freedom and security. Which includes the right not to be subjected to any form of violence from either public or private sources. S. 53: Every child has a right to be protected from abuse, neglect, harmful cultural practices, all forms of violence, inhuman treatment and punishment, and hazardous or exploitative labour S. 27: states that everyone is equal before the law and have a right to equal protection and equal benefits under the law. These provisions emphasize that a child is as important as every other person and should be protected.
If we emphasize these provisions then we will all take it upon ourselves to protect children from this inhuman practise. Each one of us will know we have a responsibility to protect the child. 4. 1. 2: CIVIL EDUCATION: We need to educate Kenyans that defilement is not the victim’s fault and that emergency measures need to be taken in the case of a child being defiled. they need to understand that it is in the best interest of the child to be taken to a hospital within the first 72 hours as it makes it possible to prevent some sexually transmitted infections.
It also ensures that there is unquestionable evidence making prosecution easier. 4. 1. 3: ADVANCED TECHNOLOGY IN COLLECTING EVIDENCE: It may be definite that a child was defiled but at times it becomes hard to connect the accused person to that crime. Measures like DNA need to be incorporated in collecting evidence in defilement cases. This is to ensure that the defence has very little avenues to create doubt as the burden of proof in criminal cases is very high. It will also add weight to the P3 form evidence. 4. 1. : LEGISLATION TO CURB CULTURAL PRACTISES ENCOURAGING DEFILEMENT: As earlier stated in this paper some of our cultures are the reason why we are still struggling with defilement in Kenya. It’s about time parliament enacted laws that curb practises that infringe the rights of children exposing them to sexual violence and exploitation. The government has a responsibility to protect its citizens and children are part of that responsibility. Severe punishments should be set for parents who marry off their young daughters, those carrying out FGM, those practising things like beading among others.
We are our culture however that does not justify inhuman practises that ruin tomorrow’s generation. 4. 1. 5: SPECIAL DESKS IN POLICE STATIONS FOR SEXUALLY ASSAULTED VICTIMS: The government needs to train some officers to specifically deal with sexual assaulted victims. There should be a special desk for sexually assaulted victims where they will be accorded special care and advised on the measures they should take. They should also accord these victims protection from further abuse. 4. 1. 6: HOMES FOR ABUSED CHILDREN:
Children being abused in their own homes should be taken away by children officers and placed in homes. This way they will be protecting these children from more harm. They will also give these children counselling and hopefully these children can live a normal life someday. 4. 1. 7: THE SEXUAL OFFENCES ACT: I still feel like the life sentence is too lenient. A person who defiles a child as young as 3months old is not any better than a murderer because a child this young has very few chances of a normal life after that ordeal. I strongly feel castration is a punishment that should be incorporated into the act.
No disorder or any other explanation people have attempted to offer can justify this inhumanity and with the rate at which it’s raising people need to realise the seriousness of their actions. 4. 2: IN SUMMERY: Defilement is an evil that’s on the rise every day in this country. And it’s not just the girl child crying out but even the boy child is no longer safe. Children are Kenya’s future and if we don’t destroy this villain called defilement in a few years we will be having a generation of abused, angry and people craving for revenge.
This will breed a generation of criminals which means we are destroying Kenya’s tomorrow. So we all have a mandate to stop this evil. I hope by the time i am admitted into the bar I will not experience what I saw during my judicial attachment. 4. 3: ACKNOWLEDGEMENT: I would like to thank the school for the chance and support through my judicial attachment. I would also like to thank madam Ireri, Limuru resident magistrate, for her devoted support and all the Limuru court staff in general. 4. 4: RECOMMENDATION:
I recommend this this report to NGOs dealing with sexual violence and children rights, Legal scholars and the public in general. 5. 0: REFERENCES: 5. 1: STATUTES: 1. The Sexual Offences Act,2006 2. The Children Act 3. The Constitution 2010 4. ANPPCAN Kenya chapter. 5. The UN Convention on the Rights of the Child. 6. Limuru Law Courts Case Law 5. 2: OTHER SOURCES: 1. J. Wanjiku Khamasi & Wairimu Muita. (1991). WORLD HEALTH ORGANISATION. Media Coverage of Sexual Violence and its Implications on Educational Leadership. retrieved August 08,2011, from www. kaeam. r. ke/e-journal/articles/vol1/wanjikufulltext. pdf 2. Kenya country profile. (April 2009). Retrieved August 08, 2010, from www. cartercenter. org/peace/human_rights/defenders/… /kenya. html 3. Sasha Hart. (August 9 2011). Police (in)action as an access to justice barrier for “defilement” victims. Retrieved august 12, 2011, from www. blogs. mcgill. ca/humanrightsinterns/2011/08/09/police-inaction-as-an-access-to-justice-barrier-for-defilement-victims/ 4. Christine Kung’u. (January, 24 2011). “160 Girls” University of Toronto, IHRP Panel Presentation.
Retrieved August 12 2011 from, www. theequalityeffects. org/pdfs/160%20girls. pdf 5. Standard team. (June 1 2005). Shocking statistics on fathers defiling daughters. Retrieved August 13 2011 from, www. groups. yahoo. com/group/MahdiUnite/message/7472 6. Winnie V. Mitullah. (July 1997). violence against women. Retrieved August 15 2011 from,www. ieakenya. or. ke/documents/Profiling%20Women%20in%20Kenya. pdf 7. Gender sensitivity. (February 2000). Retrieved on August 17 2011 from, www. unesco. org/education/mebam/module_5. pdf