Court/Judicial body: High Court of Kiribati, Criminal Jurisdiction
Date: 16 June 2004 CRC
Provisions: General reference (no specific Article cited)
Domestic provisions: Penal Code (Section 131(1): indecent assault)
Case summary
Background: Nei Keita Rekenibai, who was 15 years old, accused her uncle, Atantaake Iaokiri, of sexual assault. She alleged that Iaokiri assaulted her while she was asleep, and that when she woke up and tried to turn away from him, he pulled her back towards him so that she would face him. Rekenibai also stated that Iaokiri had sexually assaulted her in the past. Iaokiri stated that he did not sexually assault Rekenibai, but if he did, he mistook her for her aunt and therefore did not do it intentionally.
Issue and resolution: Child sexual assault. The court concluded that Iaokiri did sexually assault Rekenibai in violation of Penal Code Section 131(1).
Court reasoning: Rekenibai was sleeping next to Iaokiri, and the court believed Rekenibai’s testimony that she did not hear anyone enter the mosquito net and that Iaokiri pulled her back to him when she turned away. The Court did not believe that Iaokiri mistook Rekenibai for this wife since they differed as to their features, age, physical development and build. Although there were no witnesses, section 11(1) of the Evidence Act 2003 does not require evidence of a complainant in sexual cases to be corroborated. In its decision, the Court refused to apply the CRC, saying it cannot have the force of law until incorporated through national legislation.
Excerpt citing CRC and other relevant human rights With regard to the Convention on the Rights of the Child in order that it forms a part of the Laws of Kiribati, that Convention (Articles) must first of all be given the force of law in Kiribati by means of an Act of the Maneaba ni Maungatabu. I am not aware that necessary legal process has yet been carried out by the Maneaba ni Maungatabu [Parliament of Kiribati].
CRIN comments: CRIN believes this decision is inconsistent with the CRC. Although Kiribati has not incorporated the Convention directly, it provisions must be binding by virtue of being a ratified international treaty.
Citation: [2004] KIHC 142
Link to full judgement: http://www.paclii.org/cgi-bin/sinodisp/ki/cases/KIHC/2004/142.html?stem=…