Just but to paraphrase the words of one prominent politician, we may not know who will be the next Chief Justice, but we surely know who won’t be. While the whole process of choosing Kenya’s next Chief Justice has become a Wild Card affair, with the expected Judiciary heavyweights refusing to apply for the position, one thing we can say with certainty is that the successful candidate from the more than ten applicants won’t be Justice Chitembwe.
There is close to a zero percent chance that Justice Said Juma Chitembwe can ever be named as the next Chief Justice, and it all has to do with a 2016 ruling that has since been termed as one of the worst ever judgments in Kenya’s Judicial history. It is a wonder that he’s even still serving in the first place.
In 2016, April 25, Justice Chitembwe was listening to an appeal case by Martin Charo who had been jailed in an earlier ruling by a magistrate. He set free Martin Charo, 24, who had been sentenced to 20 years in prison for having sex with a 13-year-old. The reason he gave for overturning the Magistrate’s ruling earlier is that the minor seemed not to be complaining about the sexual act, and in fact appeared to be a willing participant.
“Where the child behaves like an adult and willingly sneaks into men’s houses for purposes of having sex, the court ought to treat such a child as a grown up who knows what she is doing,” the judge said.
He said his ruling emanated from the girl’s evidence.
“She went to the appellant’s place to have sex. She had known the appellant for about three years. She dodged her brothers after going to the beach and sneaked into the appellant’s house,” he argued.
Justice Chitembwe indicated that though “she appeared to him as a young lady aged 14 years,” she had behaved “like a full grown up woman who was already engaging and enjoying sex with men”.
“She seems not to have been complaining about the incident. She had only gone to the appellant’s house to have sex and go back home, only for her brothers to interfere. She opted to run to the appellant’s parents’ home, where they continued having sex. She then decided to go home.
She told her father where she was,” said the judge, who concluded: “It would be unfair to have the appellant serve 20 years behind bars yet the girl was after sex.”