Relating to: Siaya SO E017 of 2022 – Republic VS. Morris Obondo Were (alias Jakano Japolo); an extract from a report presented by Otieno Amisi advocates.

Background to the Case

In February 2022, GLOBCOM received a report from the county children’s’ department
about a 9-year-old girl who had been raped by a person known to her. GLOBCOM immediately dispatched a team (2 paralegals) to the location, retrieved the victim, took her to hospital and thereafter relocated her to a safehouse pending arrest of the perpetrator. Following arrest of the suspect, GLOBCOM mobilized witnesses and presented them to the Prosecution for processing. The accused was arrested on 29/03/2022 and arraigned in Court the following day on 30/03/2022 where he was charged with defilement contrary to section 8 (1) (2) of the Sexual Offences Act, No 3 of 2006 with an alternative charge of indecent assault contrary to section 11 (1) of the same Act.

The Evidence and Judgment

Five Witnesses were called, including the minor. Among the evidence produced were a Medical Report and Treatment Notes proving penetration and Birth Certificate as proof of the minor’s age. The Accused was thereafter placed on his defense during which he gave a sworn statement but did not call any other witnesses. By a judgment delivered on 15/09/2023, the accused was convicted on the first charge after which the Court deferred sentencing to 27/09/2023. On the said 27/09/2023, the accused was sentenced to 40 years in jail.

Observations

A review of the judgment revealed certain critical weakness in the prosecution case, which under different circumstances would have resulted to an acquittal. These were as follows: –

Danger of Loss of Evidence; Successful prosecution of rape and defilement cases heavily hinges on collection and preservation of evidence. These include, bodily injuries and fluids, stained or soiled clothing, and any evidence crucial to identification of the perpetrator.

Delays in timely collection and preservation of these kinds of evidence will usually result to loss of critical evidence.

In the present case, the victim was taken to the hospital more than seven (7) days after the incident. This delay exposed the case to danger of loss of crucial evidence. In the case of a sexually mature victim for instance, it would have been almost impossible to prove forceful penetration.

Identification; It is a general principle of law, captured under section 124 of the Evidence Act, that an accused person shall not be liable to conviction on the evidence of a minor unless corroborated. Whereas the section contains a proviso exempting sexual offences from this requirement, the Court is nevertheless required to satisfy itself that the minor is telling the truth and to record the reasons for reaching that conclusion. In the present case, the only evidence linking the suspect to the offence was the testimony of the minor. Whereas the Court relied on the above proviso to admit the evidence and to convict the accused person, ironically, the outcome would have been very different had the minor been younger, or had she perhaps been subjected to intense or intimidating cross examination by the accused or an experienced defence Counsel.

Laxity in Investigation; In the present case, the Prosecution relied largely on the evidence of witnesses, most of whose testimony revolved around the circumstances of the rescue of the minor as opposed to linking the accused to the offence. In this scheme of things, there existed the real danger of the accused setting up a successful alibi, which would have easily resulted to the Court not being able to rely on the proviso to section 124 of the Evidence Act to accept the testimony of the minor.

Some challenges that were faced by the team

• while the community follow up was Delayed during collection of medical evidence the Paralegals reported that when the victim first visited the hospital immediately following the rape, she was turned away owing to lack of funds.  
• Danger of Loss of Evidence Successful prosecution of rape and defilement cases heavily hinges on collection and preservation of evidence. These include, bodily injuries and fluids, stained or soiled clothing, and any evidence crucial to identification of the perpetrator.
• Delays in timely collection and preservation of these kinds of evidence will usually result to loss of critical evidence. In the present case, the victim was taken to the hospital more than seven (7) days after the incident.
• This delay exposed the case to danger of loss of crucial evidence. In the case of a sexually mature victim for instance, it would have been almost impossible to prove forceful penetration.

Recommendations

• Timeous Interventions; GLOBCOM should enhance its capacity to receive earlier reports by increasing its collaboration with community policing initiatives such as Nyumba Kumi and the Provincial Administration.
• Creation of Rapid Response Desks at Health Facilities; GLOBCOM should undertake campaigns to have every health facility to establish a Rapid Response Desk for sexual violence incidents. This will avert cases of victims being sent away as a result of lack of funds for treatment.
• The investigators ought to have gone beyond reliance on the minor s narration to, for instance place the accused to the scene of the crime with the assistance of information communication technology or subjected the accused to DNA testing.
• Enhanced Investigation Efforts; Globcom should sensitize the office of the Director of Criminal Investigations to place more effort in investigating sexual offences so as to eliminate or reduces chances of acquittals arising from gaps in investigations.
• Installation of a Witness Protection Box within the Court Rooms; Globcom should work with the Judiciary to install a Witness Protection Box within all Court precincts for the protection of minors during trial.
• Publication of the Case; Facts of the conviction followed by the lengthy prison term meted out on the accused ought to be made public through media interviews and possible documentary so as to act as a deterrence against other potential perpetrators.
• Victim Follow up and Impact Assessment; The potential negative impact of the crime to the physical and emotional life of the victim cannot be gainsaid. GLOBCOM should coin out rehabilitation measures so as to reorient her back to normal life and assist her to recover from the physical and emotional impacts of the crime.
• Continued Capacity Building for Paralegal Staff; The efforts by the Paralegal team to bring the perpetrator of this heinous crime to book and to attain justice for the victim is commendable. Globcom should continue to enhance the capacity of these Paralegals to undertake similar assignments through continuous trainings.

Conclusion

The present case show cases GLOBCOM capacity to successfully execute legal assistance as a strategy towards combating sexual and gender-based violence. It is also an indicator of GLOBCOM’s success in its fulfilment of its vision to help create a healthy and productive community. (Otieno & Amisi advocates.)