Kenya throws out corroboration in rape cases

Sep 17, 2003

In the month of May 2003, there was an outcry over a decision of Etyang J where a man accused of rape was acquitted because of lack of medical evidence connecting him to the crime.

By Chibita wa Duallo

In the month of May 2003, there was an outcry over a decision of Etyang J where a man accused of rape was acquitted because of lack of medical evidence connecting him to the crime.

The learned judge was of the view that independent medical evidence including a DNA test should have been tendered to corroborate the complainant’s story.

Corroboration has been said to be independent testimony which affects the accused by connecting or tending to connect him with the crime, confirming not only the evidence that the crime has been committed but also that the accused committed it (Republic v Manilal Ishwerlal Purohit (1949) 9 EACA 58, 61).

Where the courts have held that a conviction on uncorroborated evidence maybe had if the court maybe is satisfied, after duly warning itself on the dangers of convicting on uncorroborated evidence, of the truth of the complainant’s evidence include Chila and another v Republic [1967] EA 722, Republic v Cherop A Kinei and another [1936] 3 EACA 124, Peter Osore v Republic [1981] LLR 2998 (CAK).

Corroboration in sexual offences has been, applied haphazardly with some decisions holding that conviction cannot be had without corroboration whereas in others it was held conviction can be had but only where the trial court warns itself of the danger of convicting on the uncorroborated evidence of the complainant.

Corroboration has been necessary, to support the testimony of the complainant.

However, the reason as found in case law may be said to be derogatory to the female gender.

This is what Mwendwa CJ and Madan JA in Maina v Republic had to say: It has been said that in cases of alleged sexual offences it is really dangerous to convict on the evidence of the woman or girl alone.

Human experience has shown that girls and women sometimes tell an entirely false story which is very easy to fabricate, but extremely difficult to refute. Such stories are fabricated for all sorts of reasons and sometimes for no reason at all.

Yet again, in Jonathan Asubusa Lihutsu v Republic, Madan JA said: It has been said again and again that in a case of sexual assault the complainant’s evidence should be corroborated.

The foregoing is now water under the bridge, for on January 30, 2003, the Court of Appeal (Kwach, Bosire and O Kubasu JJA) sitting in Mombasa in the case of Mukungu v Republic, found there was no basis for requiring corroboration of the victim’s story.

The case concerned rape of a lady by a man who she allegedly knew before, but not by name.

The assailant was not medically examined, and therefore there was no medical evidence to connect him to the alleged offence. Neither was there independent evidence connecting the accused with the crime save that there was ample evidence that the complainant had been raped.

The trial court believed the complainant and convicted the accused. The High Court confirmed, on first appeal, the lower court’s findings. On a second appeal to the Court of Appeal, the only point raised by the appellant was that his conviction was based on uncorroborated evidence.

The Court of Appeal considered various case laws and considered at length the provisions of section 82 of the Constitution which provides for the right not to be discriminated against.

It then held: The requirement for corroboration in sexual offences affecting adult women and girls is unconstitutional to the extent that the requirement is against them qua women or girls.

The court pronounced: We think that the time has now come to correct what we believe is a position which the courts have hitherto taken without a proper basis, if any basis existed for treating female witnesses differently in sexual cases, such basis cannot properly be justified presently. The framers of the Constitution and Parliament have not seen the need to make provision to deal with the issue of corroboration in sexual offences.

In the result, we have no hesitation in holding that decisions which hold that corroboration is essential in sexual offences before a conviction are no longer good law as they conflict with section 82 of the Constitution.

Kenyan decision is courtesy of LawAfrica and Philip Karugaba

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