Why Karela United midfielder Flamini is likely to face ten-year jail sentence for defilement

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The promising footballer could see his dreams shattered sooner than expected as he faces serious charges in court

Karela United FC midfielder Philip Flamini has been remanded by a Ghanaian court for allegedly defiling a 13-year-old girl whose name has been withheld, AshesGyamera.com can report.

The young footballer who has been quite impressive for the Ghana Premier League side based in Ainyinase in Western Region since joining them was touted to be a future star but his lack of discipline could bring the curtains down on his career sooner than later.

He was dragged to the court on Wednesday for allegedly defiling a young girl and although he was reluctant initially to open up on his deeds, the footballer later admitted to have had sexual intercourse with the underage girl.

However, Flamini insisted that it was the young girl who lured him into the act since he wasn’t ready to do it and the judge adjourned the case to next week to gather more evidences.

“At the court, he confessed to defiling the girl,” the Social Welfare boss in the area told reporters after the hearing.

“He also alleged the victim rather lured him into committing the act. He has been remanded to reappear a week later,” the Social Welfare capo added.

According to the laws of Ghana and many other countries, Flamini could be sentenced to at least ten years in prison if found guilty of the charges levelled against him since it is a serious offence.

Trial lawyers will tell you that defilement cases are first heard at the magistrates’ court. Dissatisfied convicts are at liberty to appeal to the High Court. The High Court, being a court of first appeal, is guided by the ruling of the Court of Appeal in the case of Okeno v Republic [1972] E.A.32

In the said decision, it was held that the trial court has the advantage of observing the demeanor of the witnesses and hearing them give evidence and hence the High Court in dealing with the appeal is obligated to give allowance for that.

The ingredients of the offence of defilement are set out in section 8 of the Sexual Offences Act as follows;-

a)    Proof of penetration

b)   Proof that the complainant is a child (Under the age of 18)

c)    Proof that the accused was indeed properly identified as the perpetrator

In G O A v Republic [2018] eKLR, agreeing with a plethora of other case law on defilement, it was held;-

“The key ingredients of the offence of defilement include proof of the age of the complainant, proof of penetration and proof that the appellant was the perpetrator of the offence.”

The evidence of a single witness, the victim, is sufficient without need of corroboration. Section 124 of the Evidence Act Cap 80 Laws of Kenya provides as follows:-

“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act, where the evidence of alleged victim admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him.

Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”

In Julius Kiunga M’birithia v Republic [2013] eKLR it was held;-

“Indeed, case law has always insisted that there is no legal prohibition on convicting on the evidence of identification by a single witness, except that the court should take extreme care to eliminate any possibility of mistaken identity.”

In Chila v Republic (1967) EA 722 at 273 the predecessor of our Court of Appeal held;

“The law of East Africa on corroboration in sexual cases is as follows. The judge should warn the assessors and himself of the danger of acting on the uncorroborated evidence testimony of the complainant, but having done so he may convict in the absence of corroboration if he is satisfied that her evidence is truthful. If no such warning is given then the conviction will normally be set aside unless the appellate court is satisfied that there has been no failure of justice’’.

Proof of penetration

In Mark Oiruri Mose vs R (2013) eKLR the Court of Appeal stated thus:

“Many times the attacker does not fully complete the sexual act during commission of the offence. That is the main reason why the law does not require that evidence of spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated, and penetration need not be deep inside the girl’s organ….’ (emphasis added).

In Erick Onyango Ondeng v. Republic (2014) eKLR the Court of Appeal held;

“In sexual offences, the slightest penetration of a female sex organ by a male sex organ is sufficient to constitute the offence. It is not necessary that the hymen be ruptured.

There is no need to call each and every witness, the prosecution is at liberty. Section 143 of the Evidence Act provides that:

“No particular number of witnesses shall, in the absence of any provisions of law to the contrary be required for the proof of any fact.”

Can another doctor , apart from the one who examined the victim, produce the report as evidence in court?

If the doctor who examined the victim is not readily available to attend trial without some difficulty or is dead, another doctor can produce the report and will be admissible as evidence. Section 33 of the Evidence Act provides:-

“statements, written or oral, of admissible facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence or whose attendance cannot be procured, or whose attendance cannot be procured without an amount of delay or expense which in the circumstances of the case appears to the court unreasonable are themselves admissible ……..”

Section 77 of the Evidence Act provides:-

“(1) in criminal proceeding any document purporting to be a report under the hand of a government analyst or of any geologist employed in the public service upon any matter or thing submitted to him for examination or analysis may be used in evidence.”

In the Gerald Ngaragari Gachohi v Republic [2017] eKLR the court explained the above provisions of the Evidence Act as folows;-

“To my mind, and in the context of this case, the two sections contemplate a situation where the doctor or clinical officer giving evidence knows the doctor who had filled the P3 form. In effect he should be conversant with his handwriting and signature. Dr. Kamiti had worked with Dr. Wahome for 2 years and hence was acquainted with his handwriting and signature. On the premises, I find that the P3 form was admissible and that Sections 33 as read with 77 of the Evidence Act were complied with.”

What is the proper sentence for a child offender of defilement under the sexual Offences Act?

“Where the person charged with an offence under this Act is below the age of eighteen years, the court may upon conviction, sentence the accused person in accordance with the provisions of the Borstal Institutions Act and the Children’s Act.”

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