Oct 17

Appeals Court Rules Minor Male Prosecuted For Indecent Act With Minor Was Discriminated Against Because The Girl Wasn’t Also Prosecuted

Kenya’s High Court has quashed the prosecution of a 16-year-old boy for having sex with a 17-year-old girl. He was charged with defilement and committing an indecent act with a minor. One of the reasons the appeals court quashed his prosecution is he wasn’t afforded equal protection of the law because the girl wasn’t also charged.

High Court of Homa Bay in Mbita, Kenya (The Standard)

High Court of Homa Bay in Mbita, Kenya (The Standard)

P. O. O. was arrested in Mbita, Kenya on February 14, 2016, and the next day he was charged with defilement and committing an indecent act with a child. Conviction of the charges carried a minimum sentence of 15 years in prison.

Mbita is in Homa Bay County, on the shores of Lake Victoria, about 250 miles east of Kenya’s capital of Nairobi.

The age of sexual consent in Kenya is 18. As a former British colony Kenya’s legal system is largely based on English common law.

P. O. O. was an orphan who lived with his unemployed grandmother.

His accuser was a 17-year-old girl, S. O. O. They knew each other from attending the same church, and they regularly had long talks. After church one day in the fall of 2015, they went to P. O. O.’s home, where they removed their clothes and had sex. It was disclosed during subsequent legal proceedings that the girl — who was a year older — had initiated having sex.

The girl became pregnant from the encounter. Her parents were enraged when they found out, and reported P. O. O. to the police. After his arrest he was held in an adult jail.

He informed the trial judge during a hearing on March 15, 2016 — a month after his arrest — that he was 16. The judge ordered that his age be assessed and that he be removed from the adult jail. Neither order was carried out.

P. O. O. was not provided with a lawyer.

He requested from the judge the evidence against him. The judge ordered the prosecution to provide him with the witness statements. When the taking of evidence in P. O. O.’s case began in May 2016 he had not been given the witness statements. It wasn’t until after S. O. O. had given her testimony that he was given her witness statement. She testified they had consensual sex.

He complained to the judge he was not provided with any other witness statements, even for witnesses who testified, included the girl’s parents. However, the trial judge did not intervene to ensure P. O. O. was provided with the statements.

While his trial was in a prolonged recess, in mid-November, 2016 P. O. O. was listed on a child services list and a lawyer was appointed to represent him.

The lawyer applied for bail, which was eventually set at US$193 (Kshs. 20,000). However, with no money of his own and an unemployed grandmother, P. O. O. remained in custody in the adult jail.

The trial was stayed when on January 27, 2017 his lawyer filed a petition in the High Court to dismiss the charges.

The petition asserted:

1. P. O. O. was discriminated against in equal application of the law since the female complainant was not also charged.
2. His right to a fair trial was violated by not being provided with a lawyer at the onset of his trial.
3. His right to a fair trial was violated by the prosecution’s failure to provide him with witnesses statements and other information necessary for him to prepare for his trial.
4. In violation of the law that requires the best interest of a minor be taken into account, he has illegally been held in an adult jail, and his education has suffered because he has missed school.

Kenya’s High Court quashed P. O. O.’s prosecution in its ruling issued on August 17, 2017. The Court ruled:

1. P. O. O. is a minor.
2. He was discriminated against on the basis of sex by being charged while the girl wasn’t, because “In Kenya the law does not distinguish between the girl and the boy … In effect, the law as enacted does not discriminate.”
3. His right to a fair trial was grossly violated because he was not appointed a lawyer when he was charged, and he was not provided with the witness statements necessary to prepare his defense.
4. His right as a minor not to be detained under Kenya’s Constitution and the UN Convention on the rights of the child were violated by his prolonged incarceration without cause in an adult jail.
5. “The only way to deal with this injustice is to quash the proceedings pending at Mbita Law Courts.”

The Court ordered the payment of US$1,930 (Kshs 200,000) as compensation for the violations of P. O. O.’s rights.

Click here to read P O O (A minor) vs. Dir. of Pub. Pros. & Senior Res. Mag, Mbita Law Cts, Constitutional Petition 1 of 2017 (High Court of Homa Bay, 8-17-2017). (The ruling was issued in August 17, 2017, but it wasn’t reported in the Kenya Law Journal’s Weekly email update service until October 17, 2017.)

Two significant aspects of P. O. O.’s case are: 1) it makes clear a minor can be criminally prosecuted for having sex with another minor in Kenya; and, 2) both minors must be prosecuted without regard for their sex.

Picture: High Court of Homa Bay in Mbita, Kenya (The Standard)
Lower picture:

October 17, 2017
By Hans Sherrer
Justice Denied

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