Law firm, Dome and Kedogo Advocates, has volunteered to appeal the 15-year jail sentence imposed on a 24-year-old woman, who was on Wednesday jailed by a Kisumu court after she admitted to having sex with a 16-year-old boy.
Judith Wandera was found guilty of defilement and intentionally performing indecent act on a minor contrary to Sexual Offences Act, on July 5, 2017 at Kicomi area but the case has generated debate with many Kenyans, including senior lawyers, terming the sentence unfair in the circumstances.
Wandera, who did not have a lawyer, did not present any witness during the case and instead, sought to prove that she never thought the boy was a minor since they met in a club in the Kondele slums where he offered to buy her alcohol and they started dating.
“We met in April 2016 on one evening at a drinking joint in Kondele. He even offered to buy me drinks and settled the bill before we exchanged phone contacts and started dating,” she told the court.
In her defence, she added looking at his physical appearance, the boy, a dread-locked boda boda rider, did not appear a minor. They had dated for one year before they were arrested on July 17 last year after the boy’s mother lodged a petition. She also said he used to smoke bhang.
Ms Wandera, however, acknowledged that her lover now looks younger, having shaved off his dreadlocks.
“The boy had dreadlocks when we met, but after being taken to juvenile prison, and he has shaven, I was surprised to see how young he looked when he came to testify,” she said.
Ms Wandera, a single-mother of one, did not dispute the affair, a factor the magistrate took into account in sentencing her.
“Both admitted having sex, sometimes protected, sometimes unprotected. According to her, she could not tell how many times they did it,” said Ms Wambilyanga in her ruling.
However, critics have taken issue with the ruling, saying the magistrate failed to take into account provisions in the Sexual Offences Act, which allow for misleading physical appearances to be used as a defence by the accused and instead ruling she should have made effort to determine his age.
“There was no evidence the complainant lied about his age and the accused’s defense was disregarded based on her failure to prove what steps she took to establish whether the boy was underage,” said Ms Wambilyanga.
She added that the two were arrested twice and on those occasions asked to stop the relationship after the complainant’s mother raised the age-difference issue, but the woman ignored.
“The mother was not happy because the woman was older,” said the magistrate.
In her mitigation, Wandera asked for forgiveness, saying she has a son, a brother and her mother she was taking care of.
“I am the only person taking care of all of them. Please forgive me I will never repeat the offence,” she pleaded to no avail.
Among those who have questioned the ruling are lawyers Kamotho Waiganjo, Donald Kipkorir, Nelson Havi and Wahome Thuku. Those who reacted to their various positions challenged them to take up the issue on a pro bono basis.
Implementation of the Sexual Offences Act, which was originated by then Nominated MP Njoki Ndung’u, now Supreme Court Judge, has been problematic as it sets a minimum jail term of 15 years giving little leeway to judges and magistrates to consider other circumstances.
Critics also threw parallels with the 2016 ruling by Justice Said Chitembwe, which set free Martin Charo, 24, who had been sentenced to 20 years in prison for having sex with a 13-year-old on the basis that crying was not enough evidence of defilement and that she “enjoyed it.”
“Where the child behaves like an adult and willingly sneaks into men’s houses for purposes of having sex, the court ought to treat such a child as a grown up who knows what she is doing. She went to the appellant’s place to have sex. She had known the appellant for about three years. She dodged her brothers after going to the beach and sneaked into the appellant’s house,” he argued.
The ruling was awarded the Golden Bludgeon in Spain by Women’s Link Worldwide, beating 18 other cases to emerge the world’s worst ruling for women’s rights in 2016. The State appealed the ruling.
Others have, however, defended Wandera’s jail term, saying defilement of minors, especially, girls has become rampant with many being wooed by money and presents, including sanitary towels.