![In Ajunga’s case, if it is established he shared the video against the girl’s will, then she stands a chance of suing him for revenge porn. [PHOTO | COURTESY]](https://i0.wp.com/www.k24tv.co.ke/wp-content/uploads/2020/02/PATRICK-AYOYI.jpg?resize=730%2C414&ssl=1)
By Patrick Kipkoech
Patrick Ayoyi Ajunga, the middle-aged man who recorded himself on tape engaging in sexual intercourse with a girl speculated to be under-age, is a free man after DCI detectives ascertained that the girl had attained the age of consent when the video was taken, Kericho County Police Commander, Silas Gichunge, told K24 Digital Wednesday.
Gichunge said they couldn’t hold Ajunga any further after birth documents indicated that the girl was an adult when the two got intimate.
Ajunga said the video was recorded in 2017, though authorities are yet to verify his claim.
Though Gichunge did not tell us the exact age of the girl, in a news story published on The Standard Website on Wednesday, the girl’s birth certificate shows she was born in August 1997, and, therefore, her age was 20 when the video was recorded if Ajunga’s claim -- that the incident happened in 2017 -- is anything to go by.
“We released the suspect after it became clear that he had no case to answer,” Gichunge told K24 Digital on phone Wednesday, February 19.
“DCI detectives who had come to Kericho from Nairobi to investigate the matter ascertained that the girl was an adult when the video was recorded. And, given the two consented to the act -- if the 20-minute video clip is anything to go by -- we had no ground to continue holding the suspect in custody,” said Gichunge.
“However, if the girl comes out and says she was sexually assaulted, then we could re-arrest the suspect and lodge a legal suit against him. As things are right now, there is no complainant who has come out to record a statement implicating the suspect,” added the police boss.
In the Wednesday story by The Standard, police established that the girl was Ajunga’s distant cousin, and not the child of his wife’s sister as earlier reported.
Computer Misuse and Cyber Crime Act 2018
Had the Computer Misuse and Cyber Crime Act 2018 been in force, then Ajunga’s sexual partner could have a right to implicate the suspect for sharing her nude video against her will.
The Act was suspended in May 2018 by the High Court after the Bloggers Association of Kenya (BAKE) filed a petition which challenged the law for contravening Constitutional provisions on freedom of opinion, freedom of expression, freedom of the media, freedom and security of the person, right to privacy, right to property and the right to a fair hearing.
The Act stipulated that one whose nude pictures or videos are shared on social media or publicly-viewed websites against his or her will, can sue the partner or ex-partner for subjecting them to distress or embarrassment.
In Ajunga’s case, had the law been in existence, if it was established that he shared the videos against the girl’s will; and after the Computer Misuse and Cybercrime Act 2018 was assented to in May 2018, then the girl could have stood a chance of suing him for revenge porn.
The Act made it a crime to post certain images on the Internet without consent intended to cause emotional distress commonly known as ‘revenge porn’.
Revenge porn refers to the sharing of private, sexual materials, either photos or videos, of another person without their consent and with the purpose of causing embarrassment or distress.
The images are sometimes accompanied by personal information about the subject, including their full name, address and links to their social media profiles.
Two years jail term
The Act under Section 37, which created the offence, stated: “A person who transfers, publishes, or disseminates, including making a digital depiction available for distribution or downloading through a telecommunications network or through any other means of transferring data to a computer, the intimate or obscene image of another person commits an offence and is liable, on conviction to a fine not exceeding two hundred thousand shillings or imprisonment for a term not exceeding two years or both.”
The offence applied both online and offline and to images which are shared electronically or in a more traditional way. This included the uploading of images on the internet, sharing by text and e-mail, or showing someone a physical or electronic image.
Sexual material not only covered images that show the genitals but also anything that a reasonable person would consider to be sexual. That included a picture of someone who is engaged in sexual behaviour or posing in a sexually provocative way.
