13 December 2004

Kenya: 'Need for Corroboration in Sexual Offences No Longer Good Law'

Nairobi — John Mwashighadi Mukungu (Mukungu) was convicted and sentenced to 10 years imprisonment with hard labour for the offence of rape.

The alleged offence was committed in Mwakingali Estate in Taita Taveta District.

The female complainant (Sarah Were*) testified that she was returning home from Voi Township when she was accosted by Mukungu who dragged her into a nearby house, forcibly stripped her naked, threw her onto a mattress, which was on the floor and forcibly had sexual intercourse with her.

She screamed for help, but no one came to her assistance. After the act, Mukungu left her inside the house and went away after bolting the door from outside to prevent her from escaping.

Shortly later, Mukungu returned accompanied by another man who also forcibly had sexual intercourse with her. She could not, however, identify the second man.

She told the court that several people saw Mukungu pulling her to the house where he raped her, but when she talked to them they did not bother to go to her assistance. Her effort later to make a telephone report of the incident to the police was fruitless.

She then decided to report the matter to a village elder who on account of ill health could not assist her. He, however, asked his wife and children to escort her to her house, which they did.

She made a report the next day to a police constable, at Voi police station, who later arrested the appellant and charged him with the offence. The police officer testified that Sarah reported that two men had raped her.

Sarah's medical examination confirmed that she had recently had sexual intercourse. Mukungu was not, however, medically examined. Medical evidence did not connect him to the alleged offence.

The trial magistrate looked for and found corroboration in the medical evidence and the testimony of witnesses. On the basis of that evidence the trial magistrate found the appellant guilty, convicted him and thereafter sentenced him as earlier stated.

The superior court on first appeal affirmed that decision.

The only point of law raised in the appellant's memorandum of appeal was that his conviction was based on uncorroborated evidence.

Corroboration is in effect other evidence to give certainty or lend support to a statement of fact. In sexual cases, corroboration is necessary as a matter of practice, to support the testimony of the complainant.

The Court disagreed with the finding in a landmark case where the learned Judge stated that evidence given by women and girls on sexual offences must be corroborated because women are prone to tell entirely false stories which are easy to fabricate.

The Court of Appeal noted that the same caution is not required of the evidence of women and girls in other offences. It narrated further there is neither scientific proof nor research finding that shows that women and girls will, as a general rule, give false testimony or fabricate cases against men in sexual offences.

The Judges of Appeal found this requirement to be discriminatory against women and girls on the basis of, inter alia, race and sex as provided by Section 82 of the Kenyan Constitution.

The Court of Appeal noted that even the Evidence Act (chapter 80) Laws of Kenya, has no provision on the issue of corroboration of the testimony of adult women and girls. Section 124 thereof makes provision for corroboration of the evidence of children.

It is understandable as in their case children may be of such a tender age as not to understand the duty of telling the truth.

The Court of Appeal observed that had the charge against Mukungu been murder robbery or any other non-sexual offence, Mukungu's conviction would certainly be held to be sound.

It further stated that the time had come to correct the position that the courts have hitherto taken without a proper basis; if any basis existed for treating female witnesses differently in sexual cases such basis cannot properly be justified presently.

It noted that the framers of the Constitution and Parliament have not seen the need to make provision to deal with the issue of corroboration in sexual offences.

In the result, the Court of Appeal had no hesitation in holding that decisions, which hold that corroboration is essential in sexual offences before a conviction, are no longer good law as they conflict with section 82 of the Constitution.

The appeal was dismissed in its entirety.

'Decisions which hold that corroboration evidence is essential in sexual offences before a conviction are no longer good law as they conflict with section 82 of the Constitution.'

Mukungu v Republic Court of Appeal Mombasa Kwach, Bosire & O'Kubasu JJA 30 January 2003 Criminal Appeal 227 of 2002

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