Stop Child Abuse: No Plea Bargain

Calvin Mbane Alfayo alias Mohamed Alfayo the man who boasted on Facebook, displaying photos of himself and an underage girl with whom he claimed to have had sex was arraigned in a Sotik court on October 5, 2016 and will return to court to take plea on October 11.

True, the gravity of a sexual offence cannot be measured by the unaffected but the victim. Still, the legal standard of ‘beyond reasonable doubt’ is higher than average although many sexual offences cases do not get subjected to that lens during investigation. Given the shameful nature of sexual offences, victims sometimes shy away from recounting testimonies/accounts of violation. Often, the culprits get away with the crime.

Taking a plea and pleading guilty to a lesser charge in exchange for a favourably fairer punishment is abuse of the victim’s right to life. On the other hand, the law does not presume ‘innocent until proven guilty’ for no apparent reason.

However, the most disturbing of it all is where physical evidence shows the occurrence of the act, the offender and the victim. All parties present prove commission of the offence but the unfortunate presence of external factors which gradually cover up the offence affect the legal process in its quest for justice and preventive intentions against sexual offences.

For example, where a guardian entrusted with the protection of a victim strikes a deal with the offender in exchange for some sort of understanding in his favour, the law is overpowered. There is little that any legal enforcer can do unless the victim is outspoken and ready to battle the bitter truth of cover-ups in the system.

There are reports of parents extorting money from offenders; others consenting to marry off their daughters who have been sexually abused! This is like ‘double jeopardy’ against a victim. To be abused and thereafter be given away in marriage to your abuser is the worst crime no victim must experience. It’s like condoning the sexual offence and ‘correcting’ it by creating another offence!

Repeatedly, without legal awareness, sexual offence perpetrators lack moral guilt. Many feel justified and entitled to a sexual gratification regardless of the moral implications and physical torture to the victims, after the fact. They defend themselves, shamelessly, that the victim asked for it!

Say *Mary, a 13 year old girl is defiled by a 50year old *Mwanamme. Mary is a teenager and a minor, blossoming in her age and sexuality, experiencing all normal changes in her body only to be violated by a greedy male with immoral and unlawful sexual inclinations. *Mwanamme, selfishly feeling entitled to adventure, will offer a peace offering to *Mary’s poor parents (sometimes financially able but afraid of the proceeding shame) in form of a marriage proposal.

*Mary’s parents will accept, blaming it on her for being in a vulnerable position that tempted the selfish *Mwanamme in the first place. But who dictates that marriage is a peace offering in defilement cases! How fair is it to gift a sexual offender with the very budding petal he has plucked?

Whether it is defilement, rape or other sexual offence against a minor or adult, taking a plea and receiving a lesser punishment for a lesser offence in return requires that charges be clear and effective to enable due process of the law. And where it is necessary, obtain consent from the victim, who has obvious authority and opinion on how her/his case is to be handled.

It is common practice for courts to define, describe and frame a charge according to the legal provisions; but mostly to consider the circumstances within which a sexual offence is to be handled in the legal process. Many cases, however, lose ground in court if the charges are defective. Defective charges rarely result in favourable decisions for the victim unless court allows an amendment.

Judge Batema N. D. A on 25th November, 2015 rejected a Plea Bargain agreement of 10 years on defective charges of Rape in Uganda versus Kusemererwa Julius, Criminal Case No.: HCT-01-C12-SC-0015-2014. The Judge suggested that an amendment be made on the ‘charge and charge persons who perform sexual acts with children the offence of either Simple Defilement or Aggravated Defilement’. In that case, it was Simple Defilement contrary to section 129 (1) of Uganda’s Penal Code Act, as the victim, A.S was 16 years at the time of the offence.

Without the amendment, cases such as these hardly ever produce good results and that becomes the start of an increase in the chain of sexual violence and its ensuing effects on victims.

According to the 2010 Kenya Violence against Children Study (VACs) by the National Survey, it was reported in the Executive Summary (para.5) that:

‘…Females aged 18 to 24 who reported experiencing sexual violence in childhood were significantly more likely to report feelings of anxiety, depression, suicidal thoughts and fair/poor health than those females who did not experience sexual violence…’

 With such psychological, emotional and physical limitations after being sexually abused, how will a 13 year old cope with the so-called peace settlement in the confines of her abuser?

Previously, obtaining a P3 Form in Kenya (reporting a sexual offence) looked like a secondary abuse in the life of the victim. The guilt; the shame; the damage inflicted. In legal practice, some offences have limited definitions, ingredients and reason for the accused to be pinned for the sexual offence, thus the perpetrators often evade justice. In circumstances where the victim, successfully reported, the length of trial frustrated the process for justice. Even then, threats and blackmail reigned. They still exist.

Under the Kenyan Sexual Offences Act, once a crime is reported, it cannot be withdrawn easily unless after full completion of due legal process. It is the follow up that frustrates the accuser/prosecution from actual finding and receiving justice, eventually. Sometimes, the allegations are false.

Seldom have sexual offences trials involved male victims. This does not mean they do not exist. In a criminal offence, the elements of intent and act are emphasized. Because the litmus for evaluating the nature and gravity of sexual offences like any criminal offence is ‘beyond reasonable doubt’, sexual offences cases must be proved and specifically established.

Families often worry about social reputation than individual dignity because of gender and cultural biases. This is the first excuse for plea bargains in sexual offences cases.

Unless it can be established that in exceptional cases of mistaken identity of the accused or in some rare circumstances, falsification of a charge/offence/abuse have occurred, sexual offences crimes should not receive favour in fair law of plea bargain. That is how we will erase the likes of *Calvin Alfayo.


This article appears in our digital magazine, The Deuteronomy, Vol 7, Issue 1 of October 7th, 2016 under the title, Stop Child Abuse: No Plea Bargain for sexual offenses

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