Proposed Bill on Sexual Offences

[aeichener]

Let me just start the ball rolling. A much-disputed subject is the present draft of a "Sexual Offences Bill", brought forth by Njoki Ndung'u, the woman politician whose name is usually preceded by the epithet "nominated MP" (as if not having democratic legitimation would be something specifically laudable... but I digress).

Onyango Oloo has commented upon parts of it in his Demokrasia blog earlier (the main entry page of which is practically broken now, and I hope that functionality will be restored; backdoor entry still works). He was highly critical of it at that time.

I just wonder why the present draft of the bill - which is probably the worst piece of "emergency legislation" since Mau-Mau - has met with so little criticism, and why the usual suspects (FIDA e.g., and some other Kenyan feminists) are either silent or even applaud it. Does nobody have *any* judicious judgement left in Kenya?

Alexander

[abdulmote]

Alex, won't it be nice if you could enlighten us with your thinking upon your subject content whilst inviting others to comment on the same?

[aeichener]

I believe that the main reason for the widespread approval of the proposal is lack of legal knowledge, and the ardent desire that "something" be done. Something harsh and pompous; a typical example of symbolic legislation. Actually, the remedy will be much worse than the ill which it cannot and will not cure.

I guess I should add a hyperlink to OO's article on a previous version of the draft (though I remember that he concentrated on a single aspect of it, the so-called "chemical castration" provisions, which were by far not the worst); but I'll have to search it first...

Here is, as a first step, the link to a guest article by Kathure Kebaara
demokrasia-kenya.blogspot.com/2005/04/rapists-castration-life-sentences.html.

And here is OO's own recent article:
demokrasia-kenya.blogspot.com/2005/04/letter-to-kenyan-national-assembly-on.html.

Alexander

[Kenyan11]

Looks like Jukwaa is a mature and well designed forum. It is certain to go places. Congratulations.
Kenyan 11

[roughrider]

"I believe that the main reason for the widespread approval of the proposal is lack of legal knowledge.."

If I could chime in… The widespread approval is more the result of widespread disgust at the widespread incidence of sexual violence against women and children.

But “lack of legal knowledge” has jack to do with it. For how would you explain the undeniable fact, that among the bill’s proponents are outstanding lawyers including the country’s foremost legal gatekeeper: Amos Sitswila Wako. Do they suffer deficiency in legal knowledge?

I find this law to be very relevant and highly practicable but obviously suffering from emotionally tinged condemnation in a male-dominated World.

[aeichener]

roughrider said:

For how would you explain the undeniable fact, that among the bill’s proponents are outstanding lawyers including the country’s foremost legal gatekeeper: Amos Sitswila Wako. Do they suffer deficiency in legal knowledge?

Indeed. Amos Wako all the time, and the others at least partially. Emotions reign unbridled, instead of even a modicum of reason, knowledge and realism.

It is sadly ironic that not legal scholars, but plain prison wardens had to teach Njoki Ndung'u about the reality of penal law in Kenya and the feasibility of such not even half-baked but virtually raw projects; upon which she sheepishly dragged her tail.

Alexander

[Mgeni]

I dont know, i dont know. maybe you are right maybe you are wrong

[aeichener]

Well, Kenya *needs* indeed a thorough reform of her criminal law and criminal practice. And the section on sexual offences would vastly benefit from such a reform (side notice: drop the clauses art. 34 (2) and (3) in the Bomas constitution draft, too, if you really want to help women).

More important than cheap and noxious legislation - most of which will remain symbolic anyhow - is a reform of police and procedural practice. What little the judiciary itself can do, it has done (especially in the development of the case law on admissability of evidence); and the police have also made some important steps forward, as should be fairly admitted; it is by far not enough, of course.

But how dare, how DARE a country that lets its successful "spider squad" bleed to death due to lack of support and lack of funds (see a newspaper letter from one concerned officer a few months ago either in the Standard or the Nation), how dare such a country presume to enact as stupid as ruthless Taliban legislation (tm by Onyango Oloo) instead of efficiently tackling the evil ?!

Alexander

[abdulmote]

But this is where we sadly seem to be going wrong time and again! This very topic was fully discussed in various forum and had the merits or demerits thereof thoroughly shredded to bits. That is to say, many of us were thereafter left without any doubt whatsovere on the flaws inherent on the proposed legislation fronted by ndun'gu.

Should we then have been able to have our voices heard?But the answer is we didn't! In fact we simply couln't!

Oh well, let me restrain myself from going into areas which may only leave me dissappointed and with pain. Yes, we can moarn and groan at the rampant failures by our politicians. But equally is our fault, for remaining passive about our grief and tend to shy away at the mention, even if slightest towards finding a pragmatic solution to our miseries.

Or are we just observers in the process of entertaining ourselves in the comfort of our hideouts?

[roughrider]

Alexander:

I found the reference to ‘legal education’ rather patronizing. It is a recognized fallacy to say that a person is arguing in a particular way because he is ignorant; rather you should expose the flaws or falsehoods in his argument. But I won’t push that point. Confounding is also the claim that this law is ‘symbolic’: do you doubt that magistrates will apply provisions of the Sexual Offences Bill if and when enacted? What do you really mean?

Further, I don’t think you’ll score any brownie points by disparaging Njoki Ndungu for taking advice from prison warders. Many of the ‘plain’ prison warders are very experienced, knowledgeable Kenyans.

I don’t propose to nit-pick with you over fine points, but if only you could justify your sweeping statements.

The truth – and sadly so – is that this excellent piece of legislation is being seen only in light of the ‘chemical castrations’. This has clouded constructive debate on the law. Yet as a matter of fact all I see – and I am reading a current copy as we speak – are provisions (ranging from stiff prison penalties) to deal with various sexual offences: forced wife inheritance, FGM, gang rape, paedophilia, defilement, deliberate spread of HIV, sexual harassment at workplaces, indecent exposure etc

There is no reference anywhere to ‘chemical castration’ at all.

It therefore begs the question: Has anyone read this bill? If so what really are the points of disagreement? Doesn’t everyone agree that there must be punishment for sexual offences?

Abdul Mote:

While the discussions online flowed fast and furious, they were emotionally tinged and based on misinformation. What was most surprising was that even presumably knowledgeable feminists (the Kathure kebaara’s of this World) went ballistic trashing well meaning proposals and offering no practical counter-proposals in return; instead taking us to the murky, un-chartered grounds of high theory.

I followed some of the arguments online and most of those who opposed it were against the ‘castration’ (which is no longer in the bill); there was a school of thought that correctly opined that the ‘root causes’ needed to be tackled. But that strategy is not exclusive.

If you jail a thief, does that solve the poverty that may have driven him to steal? Certainly not, but we jail thieve nonetheless. This is because it acts as a deterrent; makes it harder for future criminals or repeat offenders. But a comprehensive strategy would involve poverty eradication IN ADDITION to the criminal penalties.

So it is with rape, law enforcement and punishment is merely a central cog in a bigger strategy to deal with the crime.

[aeichener]

roughrider said:

:

Confounding is also the claim that this law is ‘symbolic’:

No. It is not confounding but precise. Symbolic "effigy" laws are noxious. They give rise to wanton disregard and wanton application; they are the embodiment of injustice and whimsy. In fact, this very law would effectively cripple the actual prosecution and sanction of sexual offences; it will make women more vulnerable and not less.

Further, I don’t think you’ll score any brownie points by disparaging Njoki Ndungu for taking advice from prison warders. Many of the ‘plain’ prison warders are very experienced, knowledgeable Kenyans.

They are so indeed, in contray to the idjits who drafted the bill. By the way, Njoki Ndung'u was not advised by prison warders. She was advised by wardens - which is a rather big difference. The disparaging thing is that the draft is so surreally out of synch with reality. It doesn't need legal scholars to trash it. But the drafter never ever took a look outside her castle in the skies, and inside Kenyan reality.

The truth – and sadly so – is that this excellent piece of legislation is being seen only in light of the ‘chemical castrations’.

The truth is that this piece of utter crap is judged by me without any regard to the previous provisions on "chemical castration", which have been dropped anyway. I think I am a bit more up to date on it than you.

Doesn’t everyone agree that there must be punishment for sexual offences?

Do not ridiculize the issue. And be unsilly.

What was most surprising was that even presumably knowledgeable feminists (the Kathure kebaara’s of this World) went ballistic trashing

Of course. Every person with a grain of reason would, regardless whether feminist or not.

offering no practical counter-proposals in return; instead taking us to the murky, un-chartered grounds of high theory.

A good characterization of the mind of the draft bill's progenitors. With such lawmakers, we won't need any other thugs. "Taliban" is indeed a precise characterization for them, which OO used.

Alexander

[roughrider]

We wouldn’t mind knowing exactly which parts of this law are ‘noxious’ and whether in your view there is anything redeemable about it. A couple of specific examples might suffice. This is all we are asking so that we might be as convinced and as passionate as you are.

Like we’ve said before sweeping condemnation a la ‘effigy bill!’ or ‘Taliban law!’ will take us nowhere. Indeed a suitably unconcerned parliament seems set to pass the law before we can spell ‘outrage’… that does not necessarily mean they are right but exposes the ineffectiveness of a shout and shout and don’t reason strategy and in part explains Abdulmote’s frustration.

Like Julius Nyerere used to intervene: Argue, don’t shout.

I shall be back – much later – but only to look for a well reasoned argument (assuming there’s one) exposing the specific shortcomings of this law and offering practical alternatives while paying due regard to:

1. The fact that the bill no longer has any references to the ‘chemical castrations’, and;
2. The growing incidence of sexual violence in Kenya and therefore the need for stronger legal sanction as part of a wider strategy to fight the crime.

I am looking to be convinced, not berated.

[aeichener]

Some - only some - of the experts' criticism is voiced in an article of the Standard (article ID 28053):

www.eastandard.net/archives/cl/hm_news/news.php?articleid=28053

Alexander