A Kenyan high court judge J A Makau, used his own interpretation of the law to rule against labeling sex between first cousins as ‘incest’.
In a judgement where he ruled on the appeal by a man sentenced to 10 years for incest and defilement, Makau said, “the law does not list first cousins among the relatives between whom sex is classified as incest under the law.”
He stated, “My understanding of the said Section 20 ( 1 ) is that if any sexual act takes place between two cousins, that does not amount to incest within the meaning of the provisions of Sexual Offences Act,” adding that, “Parliament intentionally and with good purpose excluded relationship of cousins.”
While throwing the case out of court, the judge citing Section 20 ( 1 ) and 22 ( 1 ) ( 2 ) of the Sexual Offences Act, said, “it is permissible to have sex with a cousin because in some cultures in Kenya, such as some Hindus and Muslims and some African communities, sexual acts with cousins are not criminalized.”
The case which concerned a man simply known as WOO said the defendant had defiled his 16-year-old paternal first cousin. Both names were withheld for legal reasons.
According to Star, “On September 4, 2014, at around 3pm the 16-year-old girl and her cousin WOO went to his home. The girl was later found at his house and taken to hospital. It was found she had been defiled.
WOO was sentenced but he appealed, saying there is no evidence connecting him to the defilement. He said his cousin never mentioned in her testimony that she had any sexual encounter with him on that day.”
The trial court had sentenced MOO to ten years in prison which he appealed at the High court where judge Makau presided.
He condemned the trial court for punishing the man for incest, and dismissed the case, “I find the conviction was unsafe and should not be allowed to stand. I accordingly quash the conviction and set aside the sentence. The appellant is set at liberty forthwith unless otherwise lawfully held.”
Quick question, is a judge supposed to use “his” understanding of the law or what the law actually states while giving a verdict? And, if every judge begins applying their own interpretation to a law, what then is the point of a law or a constitution in the first place?