Kiminini MP Dr. Chris Wamalwa has condemned the high court ruling by Judge James Makau where he ruled that sexual relations between cousins isn’t incest and that there was no law that prohibits this.
High Court Judge James Makau, in an appeal where a man was contesting a conviction of alleged incest with a cousin by the Magistrates Court, found that the Sexual Offences Act does not mention ‘cousin’ among the list of relatives under the offence of incest. Justice Makau ruled that the National Assembly did not leave out the clause on cousins by intention but by the fact that in some cultures in Kenya – such as Hindus and Muslims – and some African communities, sexual acts between cousins are not criminalized, “This means it is permissible to have sex with a cousin,” the Judge ruled.
The Kiminini legislator while speaking during a funds drive in his constituency, said that it was illegal and against the African customs-especially among Luhyas-for people from the same family to intermarry, adding that leaders and even churches need to condemn the ruling made by the High Court Judge.
Wamalwa argued that the judge could have considered the trends in the various cultures of Kenya that prohibit intermarriages between relatives. He said that he should have gone deeper and consulted the churches concerning marriages, instead of making the judgment that is detrimental to the co-existence of communities.
Based on the judge’s ruling, he said that the clause which prohibits him from ruling the case as the accused having done a crime was lacking, an action the judge is still defensive about.
Dr. Wamalwa said that he plans to take a bill in parliament to amend the clause used by the judge to deliver the ruling, given that the law which prohibits marriage between cousins was lacking in the constitution.
He called upon all leaders to support his bill which he will present in parliament soon so that the same ruling pertaining the issues of marriage amongst relatives do not recur in future.
He said this is the time when all people should come together and defend their cultures which, if not well protected may be eroded, leading to a corrupt generation.
He asked church leaders and parents to be on the forefront in condemning behavioral trends that were not practiced by them, starting with the youth. This is because these trends may lead to massive upheavals and bad mannerisms in the next generations.
Judge Makau in his ruling said “My understanding of the said section (Section 20(1) of the Sexual Offences Act) is that if any sexual act takes place between two cousins, that does not amount to incest within the meaning of the provisions of the Sexual Offences Act.”
The accused person, named in the court’s verdict as WOO, was arrested and subsequently charged in 2014 for allegedly engaging in sex with a 16-year-old girl knowing that she was his cousin and the action was tackled in court, leading to its ruling in the high court.