LawAfrica -Hot From The Bench

COURT OF APPEAL REVISES THE LAW OF CORROBORATION IN RAPE CASES

In this edition of HTFB, LawAfrica's Augustine Mwanzia focusses on a recent Court of Appeal decision Mukungu v Republic (Selected for Publication in [2003] 2 EA but currently available to LLR Subscribers) which declared the requirement for corroboration in sexual offences affecting adult women and girls as unconstitutional to the extent that the requirement is against them as women or girls i.e. its discriminatory (section 82 of the Constitution).

In the month of May 2003, there was furore and 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 DNA test should have been tendered to corroborate the complainant’s story. Well, we live in a society which is constantly in a state of flux and it becomes incumbent upon the law makers and judiciary to reflect these societal changes in the law otherwise the law loses its relevance.

Corroboration has been said to be independent testimony which affects the accused by connecting or tending to connect him with the crime, confirming in some material particular 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).

The practice of requiring corroboration in sexual offences has been, since time immemorial, 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. In the former class falls such cases like Republic v Kirimunyo [1943] 10 EACA 64, Njuguna Wangurimu v R [1953] EACA 196, Ongwenya v Republic [1964] EA 129, Lihutsu v Republic [1983] LLR 3410 (CAK), Maina v R [1970] EA 370.

Among those cases where the courts have held that a conviction on uncorroborated evidence may be 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).

The requirement for corroboration has been necessary, as a matter of practice, 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 again and again that in cases of alleged sexual offences it is really dangerous to convict on the evidence of the woman or girl alone. It is dangerous because 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”.

Ouch! (Editor)

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 normally be corroborated. Women make accusations of sexual and indecent assaults for all sorts of reasons”.

The foregoing is now water under the bridge, for on 30 January 2003, the Court of Appeal (Kwach, Bosire and O’Kubasu JJA) sitting in Mombasa in the case of Mukungu v Republic (Selected for Publication in [2003] 2 EA) found there was no basis for requiring corroboration of the victim’s story. The case concerned rape of a lady by a man whom 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 other independent evidence connecting the accused with the crime save that there was ample evidence that indeed 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 law 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”.

And in what shall remain a landmark decision and a jewel in this murky area of criminal practice, 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”. (emphasis added)

A juridical issue may arise whether a three judge bench has got power to overrule other decisions of an equal bench of the same court. But be that as it may, LawAfrica’s task is to inform you of the important decisions being given by our courts and which may impact on your practices and businesses one way or the other.

LawAfrica thanks the Court of Appeal of Kenya.

Please send your comments or queries to raphael.msagha@lawafrica.com or call him on (+254 020) 2722580. Current LLR subscribers may call Raphael for a copy of the decision.

EA 2002 is out and is currently being distributed to all EA subscribers. EA 2003 will be out in the last quarter of this year.