High Court judge Said Juma Chitembwe’s decision to release a man who was convicted of defiling a minor and sentenced to 20 years in jail came back to haunt him on Monday.
Justice Chitembwe appeared before the Judicial Service Commission (JSC) interviewing panel as he seeks to replace Chief Justice David Maraga, who retired on January 12.
However, his decision to overturn Martin Charo’s sentence in 2017 arguing the minor, a 13-year-old, behaved like an adult saw him in a tight spot as he defended himself before JSC.
the judge said he took into consideration that Charo, a Kilifi resident, had told the court, in his appeal, that the minor's family was aware and did not object to their relationship.
Justice Chitembwe said the circumstances surrounding the case adviced his judgment that Charo “should not be condemned for the voluntary acts of the complainant".
He stood by his decision despite wide criticism and even amid tough questions on it by JSC panel, he said he would still make the same decision if given another chance.
If appointed the third Chief Justice of Kenya under the Constitution passed in 2010, he said he would revisit and push for a review of the legal regime in relation to defilement cases.
“If you go to the prisons, there are fewer cases of robbery with violence than defilement. If we go to the law then anyone who has sex with someone under the age of 18 is guilty. But how do you take a young 19-year-old to jail for 15 years, for having had a relationship with a 17-year-old girl? The number of magistrates who have called me to say 'thank you, you have freed us from the shackles of the Sexual Offences Act' is high,” Justice Chitembwe added.
He was the first of 10 candidates to appear before the panel, which started interviews for the posts of CJ and Supreme Court judge, to replace Jackton Ojwang, who retired last year.