Our Women’s Month judgment this week comes from Kenya’s Judge William Musyoka. What makes his decision stand out is that he has found and highlighted an anomaly in the law dealing with rape, a particularly traumatic crime that is all too prevalent. He explained that the same set of facts could be considered under either of two provisions, but one could attract a much lighter sentence than the other. He said he did not understand why there should be two provisions and why, as in this case, the state would choose to charge the accused under the section that would result in a lesser sentence. It is a welcome and important step when judgments pay such close attention to the laws that affect so many – most of them women and children; when they point out anomalies that see perpetrators walking away with ‘a slap on the wrist’, as Judge Musyoka put it. His judgment is a challenge to the legislature to reconsider the law and close the escape route that could see a rapist spending very little time in prison despite the horrendous nature of the crime.
The child in this case claimed she had been raped by a relative of her father’s, starting from when she was nine years old. The case against the accused seemed strong, and the regional (senior) magistrate convicted him and sentenced him to life imprisonment. But when he appealed, the high court found the child had not been properly sworn in: his conviction was set aside, along with his life sentence, and the man walked free. This case, from the KwaZulu Natal province of South Africa, is replicated in many countries, every day, because legal technicalities related to fair trial are so often ignored. As SA observes Human Rights Day, 2019, here’s a plea: could the courts at least pledge to ensure they get the technicalities right? It would make a great impact of the human rights of every person brave enough to go through the trauma of reporting rape and giving evidence in a trial.