Inter Press Service - November 29, 1999
Judith Achieng'

But rights groups say the decree, issued last week by Moi, should be translated into a legislation to make it more effective.

"We are in agreement with the new steps proposed to curb the spread of HIV/AIDS and the resultant needless loss of life by innocent girls through rape and sexual exploitation," says Judy Thongori of the International Federation of Women Lawyers, Kenya- Chapter (FIDA-Kenya).

"But statements and directives that are not followed up with concrete legislative change will remain just statements," she says.

About 500 people die daily in Kenya from AIDS-related illnesses, a scourge that costs an annual 40 billion shillings in terms of wasted human resources, according to latest official figures.

One US Dollar is equal to 74 shillings.

With more than two million Kenyans currently infected with the virus and 70 percent of hospital beds occupied by AIDS sufferers, Moi said HIV/AIDS is the biggest crisis facing the East African country and called on all political leaders to take up the responsibility of fighting the scourge.

He also ordered the formation of special committees of local administration officers and elders in villages to find solutions to cultural practices which have fueled the spread of the virus, and ordered the re-introduction of special lessons on AIDS in schools and colleges.

"AIDS is not just a serious threat to our social and economic development, it threatens our very existence," Moi told a symposium on HIV/AIDS attended by Members of Parliament at the Indian Ocean port of Mombasa on Nov 25.

He directed the courts to deal severely with rapists who put the lives of innocent young girls in danger by infecting them with AIDS.

FIDA-Kenya says the presidential directive would not be enough, if not followed with law reform to address not only the age of consent to marry but also all laws relating to sexual offences, as a measure of curbing the spread of HIV/AIDS. "Until they are made into law, our courts will not be in a position to effect them and those violating them will still go unpunished," says Thongori.

The lack of a specific laws on the minimum age of consent for sex or marriage for women in Kenya has been considered a key cause of violation of human rights of girls and women who are considered the most vulnerable group.

Rights groups, like FIDA-Kenya, have been fighting for the enactment of legislation which addresses the crimes of rape and early marriages.

Although the current minimum age for consent for marriage for girls is 14, many girls as young as nine are forced to drop out of school in many communities, many of them abducted by their suitors from their homes or school after prior dowry arrangement with their parents.

The Kenyan law is also weak in its definition of a child as one below 18 years but reduces the age of consent for sex to 14. Rape of a minor, defined as defilement is classified as a lesser offence than the rape of an adult woman with a maximum penalty of 14 years. Adult rape gives a maximum life sentence.

Most rape cases, however, go unreported, due to the laws which place the burden of evidence on a victim, despite the fact that rape crimes are committed in private, away from the public eye.

The Kenyan law also allows for the character of a rape victim to be impeached. For example, a rapist may get off with a lenient sentence if the victim is a sex worker, or otherwise is of "poor moral conduct."

There are no provisions for minimum sentences, and many convicted offenders, punished at the discretion of the judges have escaped with light sentences, usually with the option of a fine.

As the law stands now, a man accused of defilement can defend himself by claiming that he had reason to believe that the minor was his wife. "Having accepted that HIV/AIDS is a national disaster, then sexual crimes must be treated as seriously," Thongori points out.

"A rapist must now, more than ever, be seen as a potential murderer, and the law must reflect the seriousness of the offence by providing for a minimum sentence," she says.

FIDA-Kenya's concerns are based on examples of similar presidential decree which have never been translated into legislation.

For example, no law has been passed yet since Moi's directive to outlaw female genital mutilation (FGM) in the 1980s, as male politicians from communities affected continue to openly defend the practice as part and parcel of their culture.

"It is unreasonable for NGOs (non-governmental organisations) and the media to create the impression that female circumcision is retrogressive and primitive," a former minister in Moi's government, Reuben Oyondi, said in Nairobi last week.

Oyondi, who comes from the Kisii community in western Kenya, says circumcision is highly regarded among his people, and "it makes no sense for a few people, some who have no knowledge of the practice, to sit in Nairobi and start imposing their views on communities".

In 1994, Moi declared it a crime, punishable by death, for someone to knowingly infect another person with the HIV virus, but no law has been put in place to prosecute offenders.(END/IPS/ja/mn/99)
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