Justice Chitembwe Defends Decision to Free 24-Year-Old Man Convicted of Defiling Minor

Justice Said Chitembwe, who is eying the Chief Justice post, has defended his controversial judgment where he freed a 24-year-old man accused of defiling a 13-year-old girl.

Chitembwe stirred controversy in 2016 after he freed 24-year-old Martin Charo, who had been sentenced to 20 years in prison by a lower court after he was found guilty of defiling a minor. He said it was wrong to punish the man when both were enjoying the relationship.

Speaking when he appeared before the Judicial Service Commission for an interview on the Chief Justice position, Chitembwe said he based his decision on practicality rather than the legal framework. 

“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 told the panel on Monday.

He added: “I am not advocating for the reduction of consent. As a judge, you have to analyze 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.”

Chitembwe, who was the first candidate to be interviewed, argued that it is illogical to jail a 20-year-old man who impregnated a 17-year-old girl.

He posed: “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?” 

The Chief Justice post fell vacant following the retirement of David Maraga in January this year.

Other shortlisted candidates include senior counsel Fred Ngatia, Justice Nduma Nderi, Justice Marete Njagi, Prof Patricia Mbote, Justice Martha Koome, Alice Yano, Justice William Ouko, and Dr. Wekesa Moni.