The case of Martin Charo v Republic decided by Judge Chitembwe of the High Court of Kenya in 2016 generated a great deal of international attention. It was awarded the Gold Bludgeon for being the worst judgment negatively affecting girls and women.
Briefly, the case was about one Mr Charo (the accused), a man in his early 20s who had sexual intercourse with a girl of about 14. Under Section 8 of the Sexual Offences Act of Kenya 2006 (view a simplified version), he committed the offence of defilement for engaging in sexual intercourse with a person below the age of 18. He was tried, convicted and imprisoned for 20 years. He appealed. Judge Chitembwe set him free. The Judge’s reason was that it was the girl who had wanted the sex. The judgment caused an uproar worldwide.
Lawyers and legal commentators heavily criticised the court decision, of course, largely from the perspective of legal doctrine. By legal doctrine, I mean the idea that the law is a special body of norms, separate, if not superior to social, cultural and political norms. From this perspective, legal critics look to norms in legal texts including the national constitution, legislation and international law to analyse the integrity of the judgment. The important question lawyers have sought to address is why Judge Chitembwe’s judgment was wrong in law. The outcomes of legal doctrinal analyses range from simple (not to belittle this work) to complex projects.
However, one can also apply different analyses to the judgment, for instance, discourse analysis to bring out insights that would otherwise not be revealed in a legal doctrinal approach. In discourse theory, the law is not separate from nor superior to social norms. Rather, the law itself actively constitutes the social world. Legal precedents such as Judge Chitembwe’s judgment are considered sites for producing particular meanings out of competing meanings. The judgment is a political document signifying, constructing, and constituting social identities, subjectivities, power relations, knowledge, and indeed, ‘truth.’ A discourse analyst asks a different kind of question from a legal doctrine analyst, for instance, what conditions made it possible for the Judge to come up with a decision that disparaged sexually agentic adolescent girls.
A discourse analyst is interested in the judge’s choice of words, terms and language that enable certain meanings to dominate the legal text. Further, what are the resources (discourses) the Judge draws upon to construct the ‘truths’ he proclaimed? In the judgment, he said: “It is true that under the Sexual Offences Act, a child below 18 years old cannot give consent to sexual intercourse,” and, “Children are not meant to enjoy sexual intercourse.” A discourse analyst would also be interested in why alternative ‘truths,’ were suppressed, for instance, that children, regardless of whether they willingly engage in sexual conduct or not should be equally protected under the defilement law.
Discourse analyses furnish insights that doctrinal analyses alone would not reveal. Legal doctrinal analyses, for instance, do not explain how laws articulating lofty ideals such as protection of children from harmful sexual liaisons, coexist with the criminalisation of adolescents for engaging in consensual sex (see the attempts to change this in Malawi), or as in the case of Charo, the discrimination against unmarried adolescent girls who express sexual agency. Indeed, despite the gold bludgeon, Judge Chitembwe claimed that his decision was appreciated by some sectors of society including magistrates (see newspaper article).
Interdisciplinary approaches to legal analysis contribute toward enriching the understanding of the operation of the law in society, its contradictions, aberrations and idiosyncrasies. The intersections of sexuality and gender with legal, human rights and social norms make interesting terrain for research and analyses that go beyond legal doctrine, for lawyers and non-lawyers alike.