4 May 2006

Kenya: Sex Offences Bill Faces Major Changes After Review

Nairobi — A parliamentary committee has proposed major changes to the Sexual Offences Bill, clearly responding to and seeking to address the fears raised by MPs.

The changes include doing away with most of the provisions that MPs had frowned on. These include deleting the clauses on marital rape and female circumcision.

Also, unlike the proposed Bill, the departmental committee on the Administration of Justice and Legal Affairs demands that complainants in sexual offences bear the burden of proof of guilt on the accused person.

MPs had complained that failing to give an accused person a chance to defend his or her innocence would breach the Constitution.

The proposed amendment states: "A court shall not convict an accused person charged with an offence under this Act solely on the uncorroborated evidence of an intermediary."

The committee also proposes that an accused person be allowed to question the past sexual reputation and conduct of the complainant.

The team has also introduced a section removing rape among couples: "This section shall not apply in respect to persons who are lawfully married to each other."

In an 11-page report tabled in Parliament by Emuhaya MP Kenneth Marende (Narc) last evening, the committee suggests that whereas fighting sexual offences was important, the work must be done with fairness and without contravening the existing laws.

However, the report does not address a complaint by MPs that the Bill seeks to impose minimum sentences on sexual offenders, thereby denying magistrates the discretion to consider circumstantial evidence.

"We appreciate that many of the provisions relating to evidence were intended to seal legal loopholes that inhibit successful prosecution of sexual offences. However, we also note that we have to safeguard the rights of the accused in line with the requirements of our Constitution," the committee said.

Parliament is expected to take the Bill to the committee of the whole House this afternoon, where members will scrutinise it and make changes.

The raft of recommendations in the report will be used by MPs as a guide, but members will be free to introduce new changes or retain some provisions as contained in the proposed law.

Several deletions are contained in the committee's report, especially where its eight members felt the provisions were already provided for in law.

Kabete MP Paul Muite (Safina) chairs the departmental committee. Other members are Mr Marende, Mr Moses Cheboi and Mr Macharia Mukiri. Others are Ms Amina Abdalla, Mr Gideon Ndambuki, Mr Jim Choge and Sylvester Wakoli.

Debate on the Bill ended last Thursday with several MPs opposing it and citing flaws.

Some of the weaknesses identified in the proposed law include its failure to define sexual offences, providing different punishment for different age-groups, criminalising female circumcision and courting, and legislating on matters cultural.

Then there was the provision putting the burden of proof on the accused that many members argued contravened the Constitution.

Members also complained that the Bill, by slapping minimum jail sentences, denied magistrates the much-needed discretion to consider circumstantial evidence in cases.

The committee, it would appear, heard those views and sent a response through the report on the proposed amendments yesterday.

There are also a number of new provisions the committee proposes to introduce to the Bill to not only enrich it but also provide clarity by putting it in tandem with provisions already existing elsewhere in the law.

For example, the committee seeks to introduce a clause that will compel those alleging to have been sexually harassed by people in positions of authority to prove their case.

A person who "persistently makes sexual advances or requests for sexual favours which he or she knows or has reasonable grounds to know are unwelcome" will be guilty of sexual harassment. One found guilty of this offence shall be jailed for not less than three years or pay a fine of not less than Sh100,000, or both.

But there is a caveat. The complainant must prove that the advances were intended to be used as a basis of employment or relevant to his or her career.

Also, an alleged victim of sexual harassment has to prove that the advances or request for sexual favours interfered with his or her work, educational performance, working or learning environment.

Members had complained that instructors at some institutions of learning sought sexual favours from female students to award them high marks.

Another proposed amendment to the Bill is the one seeking to delete a provision on intentional exposure of sexual organs. Several MPs had argued that villagers who openly bathe in rivers could be jailed for this.

Also, the departmental committee seeks to allow courts to listen to arguments over the time it took between when a sexual offence was committed and when it was reported. The Bill left it to run in retrospect, stating that the time-frame does not matter. This, MPs had argued, could lead to cases where crimes committed several years ago are revived.

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