The applicant was arrested for rape on 5 October 2016. He
was remanded into custody. He applied for bail pending trial. I reserved
judgment.
This now is my judgment.
The facts were somewhat scanty. The complainant is a six
year old female minor. The applicant is her uncle in the sense that he is ...
The applicant was arrested for rape on 5 October 2016. He
was remanded into custody. He applied for bail pending trial. I reserved
judgment.
This now is my judgment.
The facts were somewhat scanty. The complainant is a six
year old female minor. The applicant is her uncle in the sense that he is her
mother's brother….,.
In this application, the applicant has completely denied
the rape accusation. He said it never happened. He said the State's case was
very weak. As such, there was no inducement for him to abscond if freed on
bail. He said he has no intention to abscond.
The applicant has also relied on the new Constitution. The
right to bail is now one of the fundamental rights and freedoms enshrined in
the Bill of Rights under Chapter 4 of the Constitution. Only unless there are
compelling circumstances will an accused person be denied bail.
The onus rests on the State….,.
To support his argument that he will not interfere with
witnesses, the applicant has offered to remove himself from the village where
the complainant lives and where the crime was allegedly committed. He has opted
to go and stay with some relatives in another village which was said to be some
fifty kilometres away. The applicant said that the police have already
completed their investigations and that therefore there is no likelihood of his
interfering with witnesses.
The applicant offered bail in the sum of $50=. He said he
is prepared to live with any strigent reporting conditions that the court might
deem fit to impose.
In opposing bail, counsel for the State argued that there
is a strong inducement for the applicant to abscond because the case against
him is very strong. Among other things, the rape happened, not once but twice
on two nights in succession. On the first occasion, the complainant reported
the abuse the following morning to one Francisca Vengai [“Francisca”], who, unfortunately, took no action. On the second
occasion, the complainant, again, reported to Francisca. This time Francisca
made a report to the village Headman. Eventually, the matter was reported to
the police. Although the medical examination showed that the complainant's
hymen had not been broken as such, it showed some interference in that it was
found to have stretched.
Counsel for the State argued that at least there is
evidence of legal penetration. She said that is sufficient for a charge of rape….,.
Counsel for the State also argued that at six years of age,
the complainant is a vulnerable witness. At trial, she will only testify with
the aid of special facilities that, among other things, prevent direct
communication with the applicant. Therefore, the likelihood of interference by
the applicant, if out on bail, is high….,.
Regarding the applicant's offer to remove himself from the
village where the crime was allegedly committed, counsel for the State found it
of no consequence, especially if the applicant was going to be staying with
some relatives - albeit fifty kilometres away. She said the alleged rape was
one in the family. Usually, in such circumstances, relatives try and interfere
in favour of protecting the perpetrator. Therefore, the applicant's suggestion
did not remove the apprehension of interference. At any rate, counsel for the
State concluded, the applicant had submitted nothing like a sworn statement
from those relatives confirming their willingness to take him on.
That was the case before me….,.
On the issue of whether or not the State has a strong case
against the applicant, again, there was a conflict on some relatively important
detail.
In its bail response, the State averred that the rape
happened twice, on each occasion the complainant reporting to Francisca Vengai.
On the other hand, the applicant, who has maintained his denial, argued that
the claim that he raped twice was not backed by the State's own papers. He
pointed out that the Form 242 made reference to only one incident. But counsel
for the State explained that the State's response was compiled when the
investigations had finally been completed. Among other things, the
complainant's statement to the police referred to being raped twice.
In my view, whether the rape happened once or
twice will be a matter for the trial court to resolve. At this stage, the
court's dominant pre-occupation is whether, if freed on bail, the accused will
stand trial or abscond, and whether he will not interfere with witnesses.
