THE JUDICIARY
THE LAUNCH OF THE NATIONAL SEXUAL OFFENDERS
REGISTER AND PRESENTATION OF THE DRAFT RULES
UNDER THE SEXUAL OFFENCES ACT 2006.
BY:
The Hon. Dr. Justice Willy Mutunga, D.Jur, SC, E.G.H.
Chief Justice/President, Supreme Court of Kenya
1 | Page
Mr. Attorney-General, the Director of Public Prosecutions, the
Chairperson
and
members
of
the
Taskforce
on
the
Implementation of the Sexual Offences Act, Dr. Sam Thenya of
Nairobi Women’s Hospital, Jedidah Wakonyo of Legal Resources
Foundation, partners and friends; it is a pleasure to welcome
you here today.
Before you arrived here today, I had the occasion to read
through the comprehensive report of the Sexual Offences Act
implementation workshop held last May and I am impressed
regarding the amount of work that has been carried out so far.
2 | Page
I note that the section on the Judiciary points to an inordinate
delay in the gazettement of the rules required to operationalize
judicial procedures under the Act. In particular the report states
that
a
“primary
challenge
to
the
judiciary’s
full
implementation of the Sexual Offences Act was the lack of
centralized guidance from the office of the Chief Justice”.
This report was written before I came into office as Chief Justice
but I do apologize for any delay occasioned. I ask, however, that
you take cognizance that the Judiciary has in the past operated
in extremely difficult circumstances. As I have said during
3 | Page
previous functions such as this, the Judiciary was set up in a
manner that suggests that it was designed to fail. Some of the
problems we found included excessive bureaucracy and silo
mentality among organizational units and the court system;
backlog
of
cases;
inefficient
and
ineffective
case
flow
management; and inadequate implementation capacity for
reforms, to mention just a few. The delay in gazettement of rules
and the setting up of a Sex offenders register are but symptoms
of the larger institutional problems we found. These will all soon
be bygones in a distant past. Now under the new Constitution
and the new leadership in the Judiciary, the process of
4 | Page
transforming
the
institution
is
taking
effect
and
public
confidence is returning to the corridors of justice.
Sexual Offences, world over are not only recognized as heinous
in nature but also as crimes against humanity.
Both Official
police and health statistics here in Kenya reflect a high incidence
rate of such offences, rating sexual offences only second to
common assault. Yet we know that due to stigma, cultural
taboos and inadequate information, there are many more cases
that do not reach formal institutions in the criminal justice
5 | Page
system. There is also need for public and private institutions and
individuals to internalize the enormity of the problem for society
as a whole to address it comprehensively. For example, here, at
the Judiciary we have adopted a zero tolerance policy towards
sexual harassment and other sexual offences committed within
the institution. It is critical that the environment we work in,
protects not only our employees but also our court users. A
formal
sexual
harassment
and
non-discrimination
policy,
defining the offences and laying out procedures for complaints
will shortly be circulated to all our stations and posted in places
where the public can access that information.
6 | Page
Today is a special occasion to mark two key processes with
regard to the implementation of the Sexual Offences Act. The
first is the launch of the Sexual Offenders Register under the
custody of Office of the Chief Registrar and as required under
Section 39(9) of the Act. The second is to receive a draft of rules,
(which
have
been
worked
on
by
the
Taskforce
on
the
Implementation of the Sexual Offences Act), and which will, once
formally approved by the Judiciary’s Rules Committee, be
gazzetted by my Office to operationalize the Act under section
47A.
7 | Page
These two milestones are critical in the Judiciary’s role within
the multi-sectoral delivery of justice with regard to Criminal
Justice. This is important because the handling of criminal
cases (and constitutional matters) attract much public interest
and therefore reflect on the face of the Judiciary and its
processes than do other cases such as civil and commercial
matters. This is one of the reasons that I have given priority to
the progressive increase of judicial officers within the Criminal
Division and introduced measures to effectively deal with the
backlog of criminal cases.
8 | Page
Sexual offences, more than other criminal matters, require
delicate handling across the entire justice chain. There are
several stages towards comprehensive justice delivery falling on
the shoulders of different institutions. From raising awareness
and encouraging reporting by non-governmental organizations to
actual reporting to, and investigation by the police; from
providing appropriate medical treatment from well trained
facilities to the professional preservation and analysis of forensic
evidence; from timely prosecution of suspects to the protection of
vulnerable witnesses; from speedy and fair trials for accused
9 | Page
persons
and
post
rape
care,
treatment,
counseling
and
restitution for victims; from a humane and safe prison
environment for convicted offenders to rehabilitation and reform
of the same. All these issues form the cogs of the same chain. If
one of them is weak than the entire delivery of justice will be
compromised. It is for the purpose of coordinating these different
but
very
crucial
actors
that
the
National
Council
on
Administration of Justice, which I chair, was set up under the
Judicial Services Act 2011. The work of the Council will close all
the gaps and facilitate processes for an efficient and working
criminal justice system.
10 | P a g e
Here at the Judiciary, I will ensure the rules are gazzetted at the
earliest possible time after the necessary formal consultations.
The rules will provide procedural clarity and resolve policy issues
related to sexual offences cases including any conflict of laws.
We are working on a comprehensive curriculum and a manual
for training of judges, magistrates and other staff on the Sexual
Offences
Act.
The
rules,
once
gazzetted,
will
form
a
comprehensive part of the curriculum content. This will ensure
that there is uniformity in the adjudication of sexual offences
cases, with particular regard to interpretation of different terms
11 | P a g e
under the Act, detailed procedures for pre-trial conferences,
intermediaries, vulnerable witnesses including victim impact
statements, handling of child witnesses, and adequate provision
for in camera proceedings.
With regard to the Sexual Offenders Register, the Chief Registrar
has comprehensively spoken on it and the pilot model as
presented today speaks for itself.
12 | P a g e
With these few remarks, I would like to officially launch the
Register and receive the draft rules. Thank You.
Dr. Willy Mutunga, D.Jur, SC, E.G.H.
Chief Justice and President of the Supreme Court of Kenya,
Nairobi, 24th April 2012.
13 | P a g e