Tough penalties for rapists, defilement offenders

Nathan Khaemba, a teacher, was entrusted with children by their parents and the State but he breached that trust in the most abhorrent manner.

That was on July 23, 2010, when he revealed his beastly character to Faith Njeri (not her real name), a Standard Three pupil, who later told the court she had known him as Mwalimu Nathan Khaemba, her science teacher and a frequent visitor to her home.

That day around 6pm, Faith was on her way to a neighbour's house to return a cock as her mother had requested her.

She met Khaemba who asked the little girl to accompany him to his house to fetch a spiritual book to take to her mother.

Instead, he stole her innocence - defiled her, unmoved by her feeble screams for help.

On October 7, 2011, a magistrate's court convicted Khaemba and jailed him for 30 years.

He appealed against the sentence but the High Court this week imposed a harsher penalty: life imprisonment.

On enhancing the penalty, Justice George Kimondo on May 17 noted that the law dictates that a person who defiles a child of 11 years and below ought to be put away for life.

"Under Section 8(2) of the Sexual Offences Act, defilement of a child of 11 years or below attracts imprisonment for life. The sentence is mandatory. The complainant was nine years. The trial court sentenced the appellant to serve 30 years imprisonment," said Justice Kimondo.

"That sentence (30 years) was illegal. I set aside the sentence handed down by the lower court of 30 years. I substitute it with a sentence of life imprisonment," the judge ruled.

The punitive action is replicated in several cases determined by the courts this year, and points to a determination by authorities to curb the vice on the back of rising cases of defilement.

Child rights groups have, too, urged courts to impose life sentences to reverse the rising reports of defilement cases.

Data from the National Child Helpline 116, a 24-hour toll-free line service to report child abuse, points to rising cases.

Last year, the Non-Governmental Organisation (NGO) received over 2,000 reports seeking legal and counselling assistance for the victims, according to the co-ordinator, Martha Sunda.

In 2014, 511 cases were recorded, 715 cases in 2013 and 1,253 cases in 2012.

The figures exclude reports through other reporting channels such as police and hospitals.

"Sexual abuse remains a very personal affair therefore for a victim to open up and report the incident, it may take time depending on the environment she stays in," Sunda says.

A recent report by the Judiciary had also highlighted the worrying levels of the vice, noting that a total of 13,828 cases had been filed in the courts in 2013 and 2014.

In 2014, there were 6,101 defilement cases in court and 7,727 cases recorded in 2013.

However Sunda says you cannot confidently tell that the number of defilement cases have reduced due to the harsh sentences meted out on offenders.

She cites other factors such as low reporting of the incidents to police or other agencies.

Despite the harsh court sentences, there are people within society who have not changed their minds, she adds.

"Despite the harsh jail terms, it requires more to be done especially in securing evidence to avoid some of the perpetrators escaping justice because the evidence adduced in court was not sufficient," adds Rose Mbanya of the Law Society of Kenya's child legal department.

Families of victims negotiating out-of-court settlements and intimidation of witnesses have been blamed for the worrying low conviction rate in defilement cases, for instance, in Kisumu.

Only two cases out of 153 have seen offenders jailed at the Kisumu Law Courts over seven years.

"There is need for the authorities and courts to expedite defilement cases so that there is no room for negotiations between parents and the suspects," said Kisumu County Director of Children Affairs Charles Ondogo.

Kisumu Principal Magistrate Thomas Obutu blamed overwhelmed judicial officers, witnesses not showing up during proceedings and parties striking deals without the court's knowledge, hence skipping court proceedings.

In Siaya, High Court Judge Aaron Makau too raised concerns over increasing number of defilement cases.

The judge noted that over 80 per cent of appeal cases before him are related to the vice.

"This is something we must address. We arrest and sentence the offenders and that is all, but the society is not concerned any more. We should take this seriously and talk to our children as most of them are victims," he said.

The Judiciary, in its 2015 Bail and Bond Policy Guidelines, also cited bail for suspects that allowed them freedom to compromise cases.

Mbanya welcomed life imprisonment of defilement offenders as a step in the right direction in addressing the vice which has seen the cases skyrocket in the past few years.

Sunda acknowledges that unlike past years, the courts were now handing down heavy punishment on those who abuse children which could be a deterrent.