The Sexual Offences Act and the Women of Kenya

In 2006, Kenya promulgated the Sexual Offences Act. This was a law to consolidate all the sexual offences that were previously spread over different legislations. This being a new Act, which sought to address sexual offences, it was important not to carry with it the historical injustices based on gender from the Penal Code, which dates back to the colonial times. While debating the Bill, Parliament made such radical amendments to it as to water down its import. However, there are provisions in this Act which are very progressive such as the inclusion of gang rape and the widening of the definition or rape to include the possibility of men also being raped.

Before the celebration is over, we must look at section 38 of Sexual Offences Act which states:

“Any person who makes false allegations against another person to the effect that the person has committed an offence under this Act is guilty of an offence and shall be liable to punishment equal to that for the offence complained of.”

The said section brings many questions to mind. What is a false allegation? At what point after a sexual attack can an allegation be declared as false? Is it on reporting at the police station or during the investigation or after the hearing of a criminal case and the accused has been acquitted? It is an undisputed fact that a case may be lost in court for many reasons including but not limited to shoddy investigations by the police, insufficient evidence (not orchestrated by the victim), Corruption or even poor case management by the prosecution among others. The Penal Code continues to provide for perjury and offence of fabricating evidence both of which are considered as misdemeanor. Thus it makes no sense to create under the Sexual Offences Act a similar offence as under the Penal Code and then enhance its punishment. Why is it a more serious offence under the Sexual Offences Act whereas there are capital offences tried under the Penal Code for which if you make a false allegation the same is tried as a misdemeanor? If the concern is to address perjury then the ordinary laws on perjury suffice.

The question one must ask is whether the criminal justice system, in particular section 38 of Sexual Offences Act discriminates against women in its treatment of victims of sexual violence. Is there more emphasis on false claims in the administration of the law of sexual assault than in other crimes? If so, why? In my view the answers to all these questions are all in the affirmative and thus section 38 should be declared as discriminatory. Indeed The Federation of Women Lawyers (FIDA) Kenya has moved to the constitutional court to challenge section 38 of the Sexual Offences Act as discriminatory against women, in contradiction of the provisions of the Constitution and not in line with human rights standards.

Conclusion

For about seventeen years now, Kenyans have fought for a new constitution. This was out of the realization that there was need to define the existence as a nation and craft a structure of government that would unify and serve all for posterity. That search to date remains elusive. The women of Kenya must be vigilant and must put all their efforts to safeguard the many gains they made in the draft constitution which was rejected at the national referendum in 2005.