Pressure piles to prohibit plea bargaining in GBV cases
On May 17, 2019, the Daily Nation carried a story on an ongoing case about the defilement of a 16-year-old girl by a businessman in Rhonda estate in Nakuru Town West sub-county.
In the case, a corporal attached to Kaptembwa police station testified that the perpetrator had reached out to her to help him negotiate an out-of-court settlement with the family.
The corporal stated that the girl was pregnant with the suspect’s child and he had accepted that it was his. And he had agreed to take responsibility over the child.
This mirrors attempts by perpetrators of gender-based violence (GBV) to bend the law in their favour at the expense of poor and vulnerable women and girls.
In 2016, Busia Woman Representative Florence Mutua brought amendments to the Sexual Offences Act, 2006 among them prohibition of plea bargaining.
The Bill had proposed that any person initiating or conniving to conceal a sexual offence should face a jail term of five years or be fined Sh500,000.
This crime would be in the form of soliciting money, domestic animals or any other property as compensation from the suspect, marrying off the victim to the suspected offender, preventing police officers from conducting investigations or distorting evidence, as elaborated in the Bill.
As such, the suspect, the corporal and the parents in the Rhonda defilement case would be charged with the offence of plea bargaining had the law been effective.
The Bill, however, failed to pass in February 2017 due to lack of two-thirds majority of MPs in favour of the proposed law.
Ms Mutua told the Daily Nation on the phone on Friday that she would be reintroducing the Bill before the National Assembly goes on recess in early December.
LAWS PROTECTING VICTIMS
“When a girl is defiled, who protects the girl? Who thinks about the future of that girl? Who thinks about that girl getting justice? Is a cow to the parents or grandmother justice?” queried Ms Mutua.
To succeed, Ms Mutua said she would undertake intense lobbying targeting both male and female MPs.
“The law will protect women, men, girls and boys. It is not meant to favour women and that is something everyone must understand,” she said.
She said the Bill should be taken seriously since it would reform the way GBV cases would be handled.
Among other proposals in the Bill is to have units in police stations across the country specifically handling GBV cases and having safe havens for victims.
“The units would minimise loss or distorting of evidence vital to prosecuting rape and defilement cases,” she said.
“We will have well equipped personnel and a lab to carry out tests on the rape and defilement victims.”
She called on the Office of the Director of Public Prosecutions (ODPP) and the Judiciary to work in tandem to ensure that cases on sexual offences are finalised within six months.
She argued that delayed justice has been one of the reasons victims shy away from reporting such cases since they feel they would waste time chasing the wind.
“Some cases drag on for years and getting evidence and witness becomes a pursuit in futility,” she noted.
Experts also suggest establishing a one-stop GBV centre in the public health facilities, exempting services associated with GBV from any charges and resourcing the National Legal Aid and Awareness Programme (NALEAP) under the Department of Justice in State Law Office to ensure the survivors get justice.
“By having a one-stop centre, the government will have made it easier for the survivors who are already going through trauma to get justice,” said Ms Jane Godia, Conference Coordinator at the African Gender and Media Initiative Trust.
The centre would have a police post, health centre, court and psychosocial wing with services offered free of charge to the survivors, said Ms Godia.
She said recently, some counties have passed financial laws with a Sh1,500 charge on acquisition of P3, which she said is prohibitive and prevents the survivors from assembling evidence to litigate.
Ms Easter Okech, the executive director of Kenya Female Advisory Organisation, said NALEAP should be well financed to ensure the survivors receive the legal aid from the grassroots level to the courts.