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TABLE OF CONTENTS

TABLE OF CONTENTS.....................................................................................................1
Bibliography…………………………………………………………………………….19
..............................................................................................................................................1
INTRODUCTION...............................................................................................................1
PART I: AN ANALYIS OF THE CRIMINAL LAW ON RAPE.........................................3
1.0 Substantive/Procedural Legal Factors............................................................................3
1.1 Extra-legal factors..........................................................................................................8
PART II THE LEGAL PROCESS IN RAPE.....................................................................11
2.1 Reporting to the Police.................................................................................................11
2.1 Arrest ...........................................................................................................................13
2.2 Prosecution...................................................................................................................14
2.3 Sentencing....................................................................................................................15
CONCLUSION..................................................................................................................17

Bibliography…………………………………………………………………………….19

Kinyua T. Kihara
2008 Moi University Page 1
INTRODUCTION

Rape is a crime of violence, aggression and domination against women. It is universally


accepted as one of the worst forms of violence against women. It may be defined as
invasion of the body of a person by conduct resulting in penetration of the victim or of
perpetrator’s body orifices with a sexual organ, or with any kind of object or any other
part of the body.1

Such acts must be intentional and unlawful and lacking in consent where consent is only
obtainable if its given by choice with the requisite freedom and capacity to make that
choice.2
Such acts are deemed intentional and unlawful if committed3:-
(a) In any coercive circumstances which include use of force or threat of harm
against the victim or a third party or against the victim’s or third party’s property
or the subjugation of the victim into submission by one in a position of power or
authority.
(b) False pretences and fraudulent means false representations as to the nature of the
act, identity of the perpetrator by holding himself out as for instance the victims

1
Section 3(1) of the sexual offences Act provides that a person commits rape if:-
a) He/she intentionally and unlawfully commits acts causing penetration with his or her genital
organs.
b) The other person does not consent to the penetration.
c) The consent is obtained by means of threats and intimidation of any kind.

2
Section 44 of the Sexual offences Act provides thus in respect to consent and the capacity to consent.
The following vitiate the capacity to consent:-
- Violence against the complainant at the time of the offence causing complainant to fear immediate
violence against her or another person.
- Unlawful detention of complainant at the time of the offence by the accused
- The complainant was asleep or otherwise unconscious at the time of commission of the act.
- Complainant was unable to communicate consent to the accused due to a disability.
- Administration of substances causing complainant to be stupefied or overpowered at time of the
commission of the act without her consent or knowledge.

3
Section 43, Ibid: deems an act as intentional and unlawful if it is committed
a) In any coercive circumstances
b) Under false pretences or by fraudulent means
c) To a person who is incapable of appreciating the nature of the act.

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2008 Moi University Page 1
husband and as to the non-disclosure of infection of HIV or other life-threatening
sexually transmissible diseases by the culprit.
(c) Incapacity/incapability of the victim to appreciate the nature of the act as a result
of being asleep; unconscious; in an altered state of consciousness, under
influence of medicine, drug, alcohol, substances impairing mental faculties and
one’s judgment; mentally impaired or is a child.
Rape is also a generic term that may be used to refer to the following;

Defilement4
Defilement includes any acts causing penetration with a child. Any person of below
sixteen years of age is deemed to be a child under the law and thus incapable of making
informed consent5.

Incest6
Indecent acts and acts causing penetration with persons sharing ties of consanguinity
amounts to incest.

4
Section 8, Ibid provides that defilement includes
1) Acts causing penetration with a child unless such offender was deceived as to the age of the victim
by the victim leading the accused to believe the child to be over 18 years of age.

5
Section 19 criminal law (Amendment) Act 2003 amends Section 145 penal code to read, ‘…. Unlawful
can knowledge of a girl under the age of 16 years’.

6
Section 20, Supra: incest includes the following:-
I) any male person who commits an indecent act or an act causing penetration with a female person who is
to his knowledge his daughter granddaughter, sister, mother, niece, aunt or grand mother
II) any acts as above committed by a female to a person who within her knowledge is her son, father,
grandson, grandfather, brother, nephew or uncle in Section 21

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2008 Moi University Page 2
Sexual Assault7
Includes the penetration of a person’s genitals by use of foreign objects be it other body
parts or objects manipulated for such penetration unless such penetration is for medical
purposes. Therefore, such penetration must be unlawful.

Gang Rape8
Is the unlawful and intentional sexual penetration of a person by two or more person
without that person’s consent.

PART I: AN ANALYIS OF THE CRIMINAL LAW ON RAPE


Until the recent enactment of the sexual offences Act 2006, the legal framework lacked
adequate capacity to deal with the crime of rape substantively.

This was evidenced by the rather light sentences9 that rapists got coupled with the a low
number of convictions in such cases as a result of;
(a) Substantive/procedural legal factors involved in dealing with the rape menace.
(b) Extra-legal factors.

1.0 Substantive/Procedural Legal Factors


Sexual offences under the penal code include: rape, abdication indecent assaults,
defilement, procuration, detention of females for immoral purposes, incest and un-natural
offences10.

7
Section 5, ibid: sexual assault includes:-
a) Penetration of genitals of another person using any body part of another or that person or objects
manipulated by another or that person except where such penetration is for medial purposes.
b) Manipulation of any body part of his or her or another person’s body as to cause penetration of the
genital organs by any part of the other person’s body.

8
Section 10, Ibid after amendment by the statue Law miscellaneous Amendment) No. 1 of 2007 defines
gang rape as rape or defilement by a person in association with another or others, or any person who, with
common intention, is in the company of another or others who commit the offence of rape or defilement.
9
The Sexual Offences Act provides the minimum sentence for sexual offences to be ten years
imprisonments

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2008 Moi University Page 3
These are classified as offences against morality which are also offences against the
person. Under the Penal Code, the following sexual offences are dealt thus;
(a) Rape
Is unlawful carnal knowledge of a women or a girl without her consent, or with her
consent if obtained by force or through threats and intimidation of any kind, or by fear of
bodily harm, or by means of false representations as to the nature of the ct or in the case
of a married woman by impersonating her husband.

Carnal knowledge means sexual intercourse. The offence only occurs on penetration of
the female organ by the male organ11. The main ingredient of the offence is lack of
consent at the time of intercourse; consent obtained by fraud amounts to no consent 12.
Consent being the main ingredient, it isn’t possible for a man to rape his wife as consent
is implied in marriage13.

In rape court looks for corroborative evidence, although it is possible to convict on


uncorroborated. However, on such conviction, the trial magistrate must refer in his
summary of the case to the danger of convicting a person of rape in the absence of
corroboration.

(b) Defilement

10
The sexual offences Act criminalizes other incidences of sexual violence including gang rape, sexual
assault, marital rape, date rape e.t.c.

11
The sexual offences Act takes a broader and more holistic approach to definition of rape and other sexual
offences by replacing the terms carnal knowledge with “penetration”. This inadequacy was inherent in both
the penal code anther criminal law amendment Act 2003.

12
In R v. Williams (1923) I KB 340, a singing master who persuaded his pupil to engage in sexual
intercourse with him for her voice to improve was convicted of rape.
13
In R v. Miller (1954) 2 ALLER 529, it was he that consent is implied in marriage and thus a husband
cannot rape his wife unless the parties are judicially separated or if there is a separation agreement with a
non-molestation cause

Kinyua T. Kihara
2008 Moi University Page 4
It is the unlawful carnal knowledge of a girl under fourteen years of age 14. Consent is no
defense to defilement unless the person so charged proves to have had reasonable cause
to believe and in fact believed the girl to be over the age of fourteen years or was his
wife.

© Indecent Assault15
Includes an assault accompanied by acts of indecency for instance a kiss can amount to
indecent assault as well as utterances suggestive of sexual intercourse. In this case
consent is a defense unless girl is under fourteen years.

(d) Incest
It is the carnal knowledge of person with whom one shares a bond of consanguinity in
which case consent is not material in this case.

It is thus clear that the penal code comes short in dealing with rape and other sexual
offences because for starters it classifies rape as an “offence against morality”. This
classification locks out violence within family set-ups including women-battery, marital
rape as well as traditional violent practices against women including forced marriage.

The failure by the penal code to recognize marital rape by implying consent in marriage
only entrenches the vice of domestic violent which is the most common form of violation
of women rights. The situation is best captured in a case where a women reported her
husband to the police for beating her and forcibly having sex with her, the police refused
to take up the issue claiming the issue to be a domestic one to be handled by the village
chief16.
14
The sexual offences Act tackles the issue of defilement according to age of victim i.e.
• Defilement of a child of 11 years and below attracts a life sentence.
• Defilement of a child of 12 years attracts a 20 year jail sentence.
• Defilement of a child of 16 years – 18 years is liable to over jail 15 years and sentence.
15
The sexual offences Act substitutes the offence of indecent assault with sexual assault which requires
actual body violation of the victim through penetration for the charge to stand
16
Amnesty International, “Rape-The Invisible Crime” http://web.amnesty.org/library/index/engar, Gina
aged 45 from Nairobi was reportedly abused by her husband from 1982, she reported him to the police at

Kinyua T. Kihara
2008 Moi University Page 5
The penal code also lacks provisions for sexual assault by restricting the purview on
sexual offences to carnal knowledge i.e. sexual intercourse. This fails to take into
account penetration using subjects for instance in a case where a man pushed the broken
legs of a stool into his wife’s genital organs, he was convicted of assault causing actual
bodily harm to his wife and fined She. 10,000 or four months imprisonment in default,
having already spent a year in prison in remand.

The penal code also tends to only provide for the maximum penalty in these cases thus
giving wide discretion to magistrates in determining sentences for such offences.17

Before the recent enactment of the criminal law (Amendment) Act 2003, the penal code
lacked any element of privacy and confidentiality for a victim giving testimony. Such
that proceedings for trials of certain sexual offences, such as defilement and rape, be held
in camera to protect identity and safeguard the privacy of the victims18. This left the
victims vulnerable to threats and intimidation as well as scorn by family members.

In some case, victims of domestic violence are denied entry into their marital homes by
their husbands until the case is withdrawn. In other cases, the victims are forced to put
up with their perpetrators in the same house19.

Evidentiary rules are such that evidence of good character of the accused is admissible.
Conversely, the fact that the accused is of bad character is inadmissible. On the other
Kilimani Police Station in August 1994. The police took no action and instead told her to go to the village
chief as the case was of a domestic nature.

17
The Sexual Offence Act makes the minimum penalty for sexual offences to be 10 years imprisonment.

18
Section 77, Criminal Law (Amendment) Act 2003 empowers judge or magistrate in a case of rape to
determine the individual who may or may not have access to the court room during such proceedings. It
also prohibits publication of materials that may lead to identification of the victim.

19
Amnesty International, “Rape – The Invisible Crime” http://webamnesty.org/library.inex/enga
Peres, aged 34, from Nairobi was reportedly beaten and raped by her husband in 1989. On reporting to the
police, whenever her husband comes home he beats her and kicks her out forcing her to sleep outside.

Kinyua T. Kihara
2008 Moi University Page 6
hand, in regard to the complainant such safeguards are not available and evidence of
character of the witness may be used to impeach the witness corroborating the
complainant’s testimony or the complainant himself20.

Criminal proceedings may be discontinued on application by the prosecution.


The penal code also provides that a male person of below twelve years is incapable o
having carnal knowledge.

In a case of rape, evidence must be corroborated for a conviction. Proof of a sexually


transmitted infection on the accused is acceptable to the court as corroboratory evidence
however there lacks a mechanism requiring mandatory examination of the accused by a
medical practitioner21.

Evidence of rape however, can only be adequately proved by examination of semen


deposits, bruises and lacerations. This requires a thorough medico-legal examination and
proper preservation of evidence for production in court22. As such there is need for
enhanced capacity in the law enforcement institutions for the proper collection and
preservation of samples to be adduced in evidence as well as a legal framework
governing the collection and preservation of such medical samples.

20
Section 34(3) Sexual Offences Act provides that character evidence may be allowed if:-
- Relates to specific instance of sexual activity relevant to a fact in issue
- Is likely to rebut evidence previously adduced by prosecution
- Is likely to explain presence of semen, source of pregnancy, any disease, any injury to
complainant, where it is relevant to a fact in issue
- Is not substantially outweighed by its potential prejudice to complainant’s perpetual dignity and
right to privacy or is fundamental to accused defence.

21
Section 14 criminal Law (amendment) Act 2003 inserts section 122 A into cap 63 which empowers a
senior police officer to order DNA sampling procedure on a suspect of a serious offence punishable by
imprisonment exceeding twelve months.

22
Section 36, Ibid: empowers court to direct appropriate samples of blood, urine or other tissue determined
by a medical practitioner for purpose of forensic testing including DNA testing.

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2008 Moi University Page 7
1.1 Extra-legal factors
The Judicial Factor
The main criterion for a functioning state is fair, impartial, independent and functioning
justice system, capable of protecting the rights and integrity of the individual. The failure
to bring to justice those responsible for crimes of sexual violence as defined in the penal
code, undermines the rule of law and indicates a creates a inadequate judicial system that
fails to take appropriate action with regard to these crimes. However, the failure of the
law to provide against marital rape ensures the vice is committed with impurity, as it fails
to comprehensively articulate marital rape as a criminal offence and afford women
victims the legal opportunity to bring to justice those who commit rape in the home.

Access to justice from women victims of marital rape is extremely difficult. It is rare for
a case of marital rape to reach the courts, and the perpetrator is more commonly charged
with assault than rape23. Often courts take the view that women are predisposed to make
false statements in rape cases thus their evidence must be corroborated24.

The lack of an effective system to investigate allegation of sexual violence and rape in
Kenya is reflected in the procedure that a woman victim must go through in order to
bring her case to court. Women victims face obstructions in the criminal justice system
and in the lack of facilities for gathering essential medical evidence, and most cases re
never heard in court.

The Police Factor


For an investigation to be initiated, a woman victim has to report the crime to the police.
Most police officers regard violence within the home as a domestic matter, and enforce
23
In a case where a man pushed the broken legs of a stool into his wife’s vagina, he was convicted of
assault causing actual bodily harm to his wife and fined sh.10,000 or 4 months imprisonment in default,
having spent a year in prison in remand.

24
In Maina v. R, Chief justice Mwendwa, warned magistrates that “Girls and women tend to tell an entirely
false story which is very easy to fabricate but very difficult to refute…”

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2008 Moi University Page 8
and uphold discriminatory attitudes towards women25. As such, their approach to sexual
crimes in typical of chauvinistic stereotyping skewed against the rape victim. Special
provisions for women have not been established in any police station or police post in
Kenya despite the introduction of “rape desk” at police stations in order to make the
police more responsive to gender-based crimes.

These “rape desks” were introduced in August 201 separate from the main police desks,
to enable victims of rape and sexual violence to report the offence in more privacy and to
police officers trained to interview victims and investigate the offence in a sympathetic
and sensitive manner. The offence of rape is generally subjected to less vigorous police
investigation than other crimes and therefore, the victims are less inclined to report such
crimes to the police. This is especially where the offender is an officer26. For instance,
there is no independent police unit to investigate allegations of rape against a police
officer. In the Kenyan legal system, the police are both investigator and prosecutor thus
raising concerns about whether police investigations are fair, transparent, impartial and
independent. In many cases police officers suspected of or accused of rape are
transferred to other units instead of being investigated and brought to justice. The police
have also been known to use delaying tactics to postpone court hearings in case which do
come to court, such as by losing evidence or transferring the case to another court in such
cases.

The criminal law (Amendment) act 2003 was enacted to fill glaring gaps in respect to
sexual offences. In this regard, it amended various provisions of the penal code cap 63
and contributed significantly to the safeguarding of the right of a victim of rape. For
instance, it amends section 145 of the penal code by adjusting the legal age of consent

25
In the case of Gina, 45 from Nairobi who on reporting her husband to the police for constant sexual
abuse she was reportedly told by the police to take the matter to the village chief as it was a domestic
matter.

26
East African standard, 22 January 2000. A bar worker was allegedly raped at gun point by a police officer
in Sagana town, Kirinyaga District in January.

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2008 Moi University Page 9
from fourteen years to sixteen years of age27. The criminal law amendment act also takes
a gender perspective approach to sexual offences by substituting words like
‘woman/girls’ with ‘person’28.

The most invaluable contribution of the criminal law (Amendment) act to the
safeguarding of the victims rights is in respect of confidentiality and privacy to which it
empowers the magistrate to hold proceedings in camera or to expel particular individuals
from the court during trial. It also requires that offenders under section 140, 141, 145,
166 and 167 of the penal code be held in camera and prohibits publication relating to
such trials that may lead to the identification of the victim or any picture of the victim. It
makes such publication an offence punishable by a fine of sh.100, 000 for individuals and
sh.500,000 for body corporate.

The Act also amends Sec. 14 penal code by empowering a police officer of or above the
rank of inspector to order in writing the DNA sampling procedure for a person suspected
of committing a serious offence.

The five year sentence in Section 144 of the penal code is substituted with twenty one
year sentence. The recent enactment of the sexual offences Act 2006 has also served to
develop the legal framework on the crime of rape. For instance the act gives a broader
and more elaborate definition of rape and goes further to make date rape and gang rape as
well as sexual assault criminal offences.

However, Section 38 of the sexual offences Act my serve to reverse the gains achieved so
far as it evokes as well as entrenches the already prevailing fear of instituting legal action
against a rape suspect. This is in light of the provision that prescribes a harsh penalty for
27
Section 19 Criminal Law Amendment Act 2003 is to the effect that;-
Any person who unlawfully and carnally knows any girl under the age of sixteen years is guilty of a fellow
and is liable to imprisonment with hard labour for life.

28
Ibid Section 20, 21 and22 amend sections 146, 147 and 148 of penal code by substituting the words
“woman or girl” with “person”

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2008 Moi University Page 10
the offence of false allegations against a person for committing rape. This provision
could be invoked where an acquittal is made yet considering the very high standards of
proof required to prove a crime of rape, a lousy job in the collection and preservation of
evidence by the prosecution could very well lead to an acquittal. Therefore, it can be
aptly said that the criminal law in Kenya has developed adequate mechanism in dealing
with rape.

PART II THE LEGAL PROCESS IN RAPE

2.1 Reporting to the Police


For an investigation to be initiated, a rape victim has to report the crime to the police.
The police should then assist the victim to attend the nearest health facility as son as
possible. This is after report has been entered into the occurrence book and the survivor
ahs been issued with a P3 form.

The P3 form will enable the victim to be examined by a doctor where two types of
evidence need be collected: evidence to confirm that sexual assault occurred and
evidence to link the alleged assailant to the assault. The P3 form being a document that is
used by victims to detail acts of torture and ill-treatment committed against them it is
divided into two sections i.e.
- Section one – to be filled in by the police.
- Section two – to be filled by an authorized health women based on clinical
notes.

In completing the first section, the police are required to ask the doctor to examine the
victim for evidence of a crime, and then escort the victim to the doctor. The second
section of the form is used by the doctor to record any injuries. Formerly, the P3 forms
were inadequate in showing the extent of injuries sustained by the victim of rape. This is
because the forms did no take into account detailed examination f the victim including
examination of the whole body for cuts and bruises and only provided for the
examination of the genitals.

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2008 Moi University Page 11
History taking, examination and documentation form the vital link in putting together
convincing evidence essential for a conviction in the case of rape. As such, the filling in
of the P3 forms, which currently forms the basis for investigation, arrest and prosecution
of perpetrators in rape cases, is inadequate. There is need for collection and preservation
of torn or soiled clothing as real evidence as well as specimen collection of samples from
accused to be matched with semen which should be swabbed from the crime scene for
micrology. This is in consideration that presence of for instance a sexually transmitted
disease on both the accused and victim can be adduced as corroboratory evidence in rape
cases. Thus collection of forensic evidence should be a priority. However, this requires
proper documentation and proper preservation of evidence that calls for availability of
well-trained personnel as well as adequate facilities for forensic investigation29.

In cases where abuses have been committed by the police themselves, women have
feared trying to obtain a P3 form, especially if the abuse took place near the station where
they are to apply. In other cases, victims of police torture have been threatened by police
officers when they tried to make a statement30.

Even doctors, especially considering that only police doctors are authorized to fill in P3
forms, are generally reluctant to examine victims or fill in P3 forms especially when a
police officer is the perpetrator. Doctors regularly examine torture victims but few are
called to court to give evidence and even those who appear to give evidence are unable to
present a very convincing testimony since government doctors are generally not allowed
to keep a copy of the completed P3 form for their records thus finding it difficult to recall
the case for purposes of giving evidence. Initially, date rape was not viewed as a crime in

29
Section 36(3) Sexual Offences Act empowers the court to order the preservation of samples in a databank
of a person convicted of sexual offences and destruction of such samples for a person acquitted.

30
Amnesty International, “Rape – The invisible crime” http://web.amensty.org/library/index/engraf
Mary Maragwa aged 45 from Bungoma was raped and assaulted by police officers who were looking for
her husband for involvement in local politics. She was reportedly, subsequently, detained for two months
without charge and no action has since been taken against the police officers.

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2008 Moi University Page 12
Kenya. This was in the backdrop of a culture requiring that a woman should stay away
from men who had no ties of consanguinity with them31.

The P3 form also falls short in proving a rape case as it is essentially for detailing acts of
torture and ill-treatment and thus is only effective where there are cuts and bruises and
other injuries that may be recorded in the form. The lack of any visible injuries on the
body of a rape victim makes it impossible for the victim to get a conviction on the case of
rape.

2.1 Arrest
In Kenya, the police have wide discretionary power to arrest a suspect with or without a
warrant, although the law requires probable cause to exist. As such there must be some
facts and circumstances that justify the arrest32.

The crime of rape among other sexual offences justifies the arrest of the suspect without a
warrant by the police33. However, for an arrest to be effected legally, the victim must
report to the police, make a statement before being issued with a P3 form then go for a
medical examination where the P3 form will be filled by the doctor. It is only after the P3
form has been duly filled in can the police arrest the suspect. This is because it is the
filling of the P3 form that forms the basis for the investigation, arrest and prosecution of
perpetrators of sexual offences.

31
Obi, N. I. World fact Book of Criminal Justice System in Kenya, State University of New York
“Although rape is a very serous offence in Kenya, date rape is not a crime. This is because the culture
provides that a woman should stay away from a man who has no ties of consanguinity with her. If she is
invited by a man who has no blood relationship with her, she should know that a demand for sexual favour
will be a likely prospect. If she does not expect to yield to the possible sexual demand of the invitee, she
should decline the invitation”

32
Section 29 as well as sections 21, 22, 23 and 24 of the Criminal Procedure Code cap 75 are on the arrest
of suspects.

33
The schedule to the Amended Criminal Procedure Code (2007) provides that sexual offences under the
penal code and the Sexual Offences Act warrant an arrest of the suspect without a warrant to be tried in
subordinate court of first class.

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2008 Moi University Page 13
In places where there lacks adequate health facilities or the available ones are
inaccessible, the victims may be forced to make a number of trips to the doctor if they
cannot be examined straight away. During this entire period, the perpetrator walks about
scot-free and this could set the basis for secondary victimization of sexual abuse
survivors especially in a domestic set up where the victim may have to put up with the
perpetrator.

Considering, that the P3 from forms basis for making an arrest of a perpetrator, the
absence of any visible injuries essential for the filling of the form could greatly reduce
the chances of an arrest of a perpetrator especially since there is no obligation to arrest
unless a warrant is in issue.

2.2 Prosecution
In Kenya, the Director of Public Prosecutions appoints a serious police officer who acts
as a prosecutor in a criminal case34. The prosecutor, as a representative of the state,
studies the case and designs how to present the case on the day of the trial. During the
trial of the case, the prosecution presents all of the evidence to prove the defendant
committed the offence. Again in the case of prosecution, the filling of the P3 form forms
basis for prosecution of the case.

Such prosecution must furnish proof beyond reasonable doubt in order to secure a
conviction. Such proof is dependent on the cogency and admissibility of the evidence
adduced in court. Cogent evidence in rape cases in only possible by obtaining and
examining of semen deposits, bruises and laceration and the adducing of corroboratory
evidence. In the first instance of furnishing of real evidence, torn and soiled clothes for
instance should be produced in court as exhibits which call for the preservation of the
same. Evidence of the bruises and lacerations is only possible by production of a duly

34
Section 85, Criminal Procedure Code, empowers the AG’s office to appoint any advocate or public
servant as prosecution who if a police officer shall be of the rank of assistant inspector.

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2008 Moi University Page 14
filled P3 form in court. Where there are no bruises and lacerations it becomes more
difficult to prove the case beyond reasonable doubt. On the other hand, examination of
semen deposits is a forensic investigation, which is only possible with the requisite
forensic equipment and the skilled manpower to handle it.

Previously, there lacked any element of confidentiality and privacy in the primary
criminal law, statute i.e. the penal code. This complacency in the drafting of the penal
code had the adverse implication of compromising material evidence from vulnerable
witnesses who for fear or intimidation or shame of testifying in open court chose to either
abscond or give an inaccurate account of the material events in respect of the facts in
issue35. This had the impact of denying victim a fair trial.

On the same limb, previously the evidentiary rules allowed for the admissibility of
evidence of character in rape cases such that an accused in rape case could give evidence
that the prosecutrix was of generally immoral character in a bid to discredit her36.

2.3 Sentencing
Sentences in Kenya are generally determined by the magistrate or judge hearing the case
without a jury. The penal code cap 63 which provides for sentences and penalties in
sexual offences only provides the maximum sentences in such cases thus giving the
magistrates wide discretionary powers to determine the sentence for persons convicted of
rape37. As such, sentences in cases of rape vary widely and wildly and are frequently too
lenient.

35
Section 31 and 32 of the Sexual Offences Act provide thus in regard to determination and protection of a
vulnerable witness

36
When a witness is cross – examined he may be asked any questions which tend to test his accuracy,
veracity or credible, to discover who he is and what is his position in life, to shake his credibility by
injuring his character, even though the answers to such questions might incriminate him.

37
The maximum penalty in the offence of rape under the penal code is life imprisonment with hard labour.

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2008 Moi University Page 15
However, the enactment of the criminal laws (Amendment) Act in 2003, followed by the
subsequent enactment of the Sexual Offences Act in 2006 has attempted with
considerable success to have heavier penalties in respect of sexual offences. For instance
the sexual offence Act imposes a penalty of ten years to life imprisonment for rape, with a
ten-year sentence being the minimum sentence for any sexual offence. The sexual
offences Act is also credited with providing for the collection and production of forensic
evidence in sexual offence cases. It also restricts the admissibility and production of
character evidence to discredit witnesses in rape cases.

In section 31, the Sexual Offences Act makes elaborate provision on the protection of
vulnerable witnesses while in section 27 it makes provisions in respect of date rape. In
the protection of vulnerable witnesses, the Act requires that such a witness give evidence
through an intermediary to avoid having to face the accused especially where the victim
in a child and those proceedings in such cases are held in camera.

The P3 form was recently amended to consist of about a dozen pages allowing for the
reporting of a more detailed examination of the rape victim including provision for the
examination of the whole body for cuts and bruises and not only of the genitals.

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2008 Moi University Page 16
CONCLUSION
Dealing with rape requires not only a legal approach but there is also need for a support
mechanism that can adequately attend to the victim especially in the form of;-
- Medical management
- Psycho- social management(counseling)

Medical Management
This should include the proper collection of all relevant evidence, HIV testing and
pregnancy tests followed by treatment of physical injuries including abrasions and
lacerations. Proper collection of evidence in matters of rape requires the victims not to
take a shower before being medically examined. This call for a greater awareness
campaigns on steps one should take following a rape ordeal in order to preserve vital
evidence.
There is also a need for a legal institutional framework that provides for:-
• Pregnancy tests and administration of free emergency contraception (EC) on the
rape victim.
• Free and immediate administration of post exposure prophylaxis (PEP) i.e. over
or a combination of Anti-Retroviral Drugs (ARVs) for28 days after the exposure
to HIV.
• Testing for HIV within 72 hrs of starting PEP Administration of prophylaxis to
rape survivors for sexually transmitted infections.

Psycho-Social Support
This entails counseling of the victim as well as the victim’s immediate family and the
rehabilitation of the victim so as to avoid secondary victimization.

Rape victims are generally traumatized by the ordeal in addition to exposure to HIV and
sexually transmitted infections. They therefore require trauma counseling as well as HIV
counseling.

Kinyua T. Kihara
2008 Moi University Page 17
Trauma counseling should also be offered to the victim’s partner and families who are
equally traumatized after such events.

The above support measures should be availed in rape cases as a matter of right to the
rape victims which is only possible in an enabling legal and institutional framework.

Kinyua T. Kihara
2008 Moi University Page 18
BIBLIOGRAPHY
Amnesty International, “Rape – the invisible crime”
http://web.amnesty.org/library.index.engraf as at 14th November 2007.

Criminal Law (amendment) Act No. 5 of 2003, Government Printers

Criminal procedure codes, cap 75 Laws of Kenya, Government Printers

Constitution of Keya, cap 1 Laws of Kenya, Government Printers.

East African Standard, 18 February, 2001.

East African Standard, 22 January 2000.

Evidence Act, cap 80 Laws of Kenya, government Printers

Mbote, k, p. (20001) Violence against Women in Kenya: An Analysis of law Policy


institution IELRC Working paper

Migai, j. m. (1995) The Kenya penal Code and Spousal Rape: Is threw a need for
Legislative intervention? University of Nairobi Law Journal Issue No. 2

Obi, N.I, World Fact Book of Criminal Justice System Kenya, State University of New
York

Sexual Offences Act No. 3 of 2006, Government printers.

Statute law (miscellaneous Amendments) Act No. 7 of 2007, Government Printers

The Penal Code, Cap 63 Laws of Kenya, Government Printers

Kinyua T. Kihara
2008 Moi University Page 19