Justice Said Chitembwe has defended himself against a ruling that he made setting free a 19-year-old man who had been convicted of defiling a 17-year-old girl.
Appearing before panelists from the Judicial Service Commission (JSC) in an interview for the Chief Justice (CJ) post, Justice Chitembwe said that the ruling was based on the practicability of the issue more than the legal framework.
The ruling was ranked the world’s worst ruling for women’s rights in 2016, consequently receiving the Golden Bludgeon.
The accused, Mr Martin Charo (24), had been sentenced to 20 years in jail for having sex with the minor.
“How do you take a 19-year-old young man for 15 years in jail for having a relationship with a 17-year-old girl?” he posed.
According to Chitembwe, the two had consensual sex which should never be termed as defilement.
“When I write my judgment, I am not considering what the judge of appeal will say. I am ready to be criticized. In the said case, the lady (child) said she went to the man’s house, had sex with him and went home, she was not defiled,” he said.
According to the judge who is eying the seat currently held by Justice Philomena Mwilu in an acting capacity, the law is progressive and its application must pay attention to social and behavioral changes.
“You convict a 20-year-old boy while the 17-year-old girl he impregnated is crying, “where is my husband?” Do you look at the law and jail the boy or do you look at the girl who will be ripe for marriage in a year and her child?” he posed.
He however denied that he was advocating to have the consent age for sex and marriage reduced from the current of 18 years.
“I am not advocating for the reduction of consent. As a judge, you have to analyse what transpired. Age of consent is not an issue. Martin Charo’s case is one where he was dating the girl and brothers knew where the sister was,” he added.
Justice Chitembwe will be competing for the post against Fred Ngatia, Philip Murgor, Prof Patricia Mbote, Justice Martha Koome, Justice Marete Njagi, Justice Nduma Nderi, Justice William Ouko, Dr Wekesa Moni and Alice Yano.