Ajabu Africa News

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A judge has ruled that sex between first cousins is not incest Photo/File

By:

JILLO KADIDA

Posted:

Aug,11-2016 14:38:07

Should first cousins be allowed to have sex? The courts think so.

High Court Judge J A Makau says the law does not list first cousins among the relatives between whom sex is classified as incest under the law.

In his judgment, Makau 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 criminalised.

He cited Section 20 (1) and 22 (1) (2) of the Sexual Offences Act.

Makau said Parliament intentionally and with good purpose excluded relationship of cousins.

He said this on July 28 when he ruled on an appeal by a man sentenced to 10 years for incest and defilement.

The man, identified in the case only as WOO, is said to have defiled his 16--year--old paternal first cousin. The two cannot be identified for legal reasons.

The judge disagreed with the trial court for punishing the man for incest, saying, "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."

He added, "I find that it was an error in law for the trial court to have imported the relationship of a cousin and included it within the provisions of the law when that relationship was not among the specified relationship, to be considered in determining a case of incest."

According to the prosecution, 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.

Justice Makau agreed with the accused that the trial court misapprehended the girl's evidence and imported into the proceedings some extraneous matters. This led to the court making a finding that is not supported by evidence on record, he said.

Makau found the prosecution did not prove that the girl was penetrated by the accused.

"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," the judge said.

Source:

The Star