Chitembwe to relook at sex offenses punishment if appointed CJ

Justice Said Juma Chitembwe has been the first to be interviewed by the Judicial Service Commission (JSC) for the office of the Chief Justice. In his submission, he argued that he will embrace the sociological approach to justice rather than the normative approach. The law is supposed to serve the society and not the society to serve the law. 

Chitembwe, a judge of the high court in Kenya, stated that as of today there are more convicts of sexual offenses than those of robbery with violence. Now the question is, what might have happened? There could be more normative application of the law than the sociological application of the law. The judge said that he has read and to some extent agrees with the “laws of Romeo and Juliet” in the USA which provides that a person can legally have consensual sex with a minor provided that he or she is not more than a given number of years older, generally four years or less.

The Kenyan law provides a jail term for sexual offenders but judge Chitembwe wonders how a 19-year-old boy can be sentences to 50 years in jail for defiling a 17-year-old girl whom they have been courting for over three years and maybe even have children together. Who will take care of the children? The judicial officer should look at the circumstances of the case rather than to operate that when the ingredients of defilement are age, penetration and identification then go to prison, that should not be the duty of a judge.

In an earlier case the judge had ruled that when a minor walk into a man’s house, enjoys sex and goes back to her home, then the minor behaved as an adult and the case cannot be taken as defilement. In such a situation the man should not receive the same sentence as another man who forcefully pulls a minor into a bush and commits sex with her. Until recently, if a 17-year boy engages sex with a 17-year-old girl, the boy could be sentenced to a jail term for defilement as the girl is set free.

In general, the issue of sexual relationship is more of a societal problem than an issue of the courts. During the times of our grandfathers, matters related to sex and sexual relationship had precise guidelines which were strictly followed and cases of defilement were very uncommon. In the post-colonial period, boarding schools have been emphasized and in these schools, learners are rarely exposed to life skills. Many parents prefer boarding schools to day schools in order to hide the children from the societal ills rather than teaching the children on how to handle the challenges.