Let's Protect our Future: Tackling the Issue of Defilement in Kenya

 

The sad nature of this occurrence is that even after having the Sexual Offences Act of 2006, amongst other laws prohibiting various sexual offenses, there is still a shocker when we look into the rising numbers of sexual offenses, including defilement cases. Such cases are not really evidenced by the mere fact that they have been reported by the victims, but by the fact that we can see the not-seeable scenes of young girls, now young mothers, bearing unwanted pregnancies.

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It is clearly noted via an English case, Pugh vs. Pugh, 133 W. Va. 501, 56 S.E.2d 901 (1949), that it is not only socially but morally wrong for one to cause one to be legally united in such a union as marriage but also allow such children to engage in carnal knowledge that may lead to their being recognized as child bearers and falling into the traps of such stresses.

Defilement is well defined as having carnal knowledge with anyone considered a minor (one under the age of 18). The said offense is broken down into three categories, depending on the age bracket. However, the essential or most critical part is that the said action is an offense recognized by statute. Aside from being recognized as a crime, defilement is a debilitating experience for the victimized children, with negative psychological, social, educational, and physical health outcomes that are not only detrimental to the affected child but also to their families and society at large.

Considering the statistics of the years, say 2022 and 2023, the number is continuing to rise, with a report dating June 6, 2022, showing defilement cases rising to 56.3% of the overall sexual offenses. It's so unfortunate that for us as a country, even with national legislation in place, including the Children's Act and the Sexual Offences Act, cases of defilement are still skyrocketing. Despite Kenya ratifying and adopting international laws such as the Convention on the Rights of the Child that compels parties to take all appropriate legislative, administrative, social, and educational measures to protect children from all forms of violence, including defilement and sexual abuse; we've not been close to or have been unable to fight this menace that is heavily destroying a promising generation.

A great concern has been raised over the years, with the education sector taking a great hit on the realization that at a particular stage in educational life, most girls either opted out of school for getting pregnant or because there were no financial resources to keep them there. The late Cabinet Secretary of Education, Professor George Magoha, raised such concerns about pregnancy among students and even asked education officials to investigate such causes. However, such investigative and mitigating efforts have taken a nosedive as no visible action has been taken to affirm and protect "the child" from such occurrences. Recent research brought out a report that such cases were, however, influenced by the girls not being able to access sanitary towels or pads due to financial constraints. This obviously is a true fact, but it just spells out one fact. Defilement is another greater vice that has played a great role in putting away so many girls from school and hence truancy.

Just recently, it was reported that there had been a major increase in pregnant children, with the western counties leading at the top. What came out as something conspicuous or outstanding was that the offenders were either known to the victims or were generally relatives. Where such an offense occurred around a very close family member or neighbor, most of the time the family of the victim, especially if they were poor, decided to adopt an "ADR" kind of mechanism to solve the issue if it appeared that the offender was ready to pay any said amount amidst negotiations to cover up the shame.

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At such points, the child, who stood as the oppressed or the victim, was asked to remain silent on the matter, and at other moments, they were punished severely if they opted to speak out. Such occurrences, in most instances, have created room for children to bear children that they are not able to support, suffer mental-psychological breakdowns, and again let offenders roam free without justice being served for the malice they caused. It’s also of great concern that even after Chief Justice Emeritus David Maraga vehemently warned of the dangers of solving child defilement cases at home, we are still witnessing such incidences rising in number. Data collected over time showed that children are the most vulnerable to sexual gender-based violence since they cannot defend themselves against the perpetrators, or where they are legible, their guardians intervene to cause a miscarriage of justice by accepting tokens so as to "keep quiet."

However, even though such cases of victims have been subjected to such offenses and matters have been solved through alternative means other than litigation, a Mandera court has in recent times charged four elders who resorted to Maslaha for conspiring to defeat justice and interfering with witnesses.https://nation.africa/kenya/news/gender/four-detained-for-resolving-defilement-case-using-maslaha-3225774

In conclusion, the government should be keen on ensuring that, with a lot of might, the rights of a child are protected, respected, and handled with urgency in case of any violation. They should enhance the effectiveness of the local administration by expediting the incarceration of the perpetrators of such offenses and such persons who may aid or abet in causing obstruction, defeat, or miscarriage of justice. The government should also ensure that the local administration is well-trained and well-financed so as not to fall into traps of corruption and hence overlook such offenses of defilement. They (the government), with the help of non-governmental organizations as well as other groups of goodwill in the community, should also ensure they facilitate civil education in the community, including reporting such matters.

 Solomon Mithamo Mutugi is a Paralegal Student at the Kenya School of Law