While the world marks March as women’s month, a judge in Kenya has been struggling to find the most appropriate sentence to impose on a woman who took matters into herr own hands when faced with a violent partner.
Readers of this remarkable decision by Judge Roselyn Aburili are given notice in the very first sentence that it will be something out of the ordinary. She begins with quoting Amnesty International on the elements of domestic violence: a slap, a punch, a kick, intimidation, coercion and fear, dominance, power and control.
Against this background she considers the accused, Truphena Aswani, charged with murdering her husband. She was ‘butchered, battered, dehumanized and violated’ by him. And, in the process of standing up against a man who was an abusive alcoholic, irresponsible and violent, she killed him in the process of ‘defending her own life’.
Aswani, a village elder, took care of children from his previous marriages after those wives left the man because of his violence. She and her husband had one child together, and she thought that would change him for the better, said the judge.
After a plea bargain, Aswani’s charge was changed from murder to manslaughter and she was convicted last month.
Briefly, Aswani’s evidence was that in mid-December 2020, her husband, James Obochi, came home late after a drinking spree. He ate his supper and then began quarrelling with Aswani. Obochi’s own father, who had since died, had given Aswani the title deeds to some land, saying she should take care of it since Obochi would simply sell it and drink the proceeds.
During the quarrel, Obochi picked up a machete. As he raised it to strike her, Aswani grabbed the weapon from him and used it against him, in defending herself. When she saw that he was dead, she was frightened and took his body to hide to a neighbour’s land. Initially, when the body was discovered, she did not confess, but she was later arrested and charged.
Explaining the years of abuse she had experienced at the hands of Obochi, she showed the court scars on her body – all still visible. She spoke at length of how she had been subjected to ‘torture and inhuman treatment’ at his hands. In November 2020, for example, she was assaulted until she nearly died. She was hospitalised but he did not visit her in hospital or pay her hospital fees. He continued threatening to kill her and their son unless she gave him the deeds for the land that had been put into her name.
He threatened to kill her if she took legal action against him or reported the abuse to the police.
A pre-sentence report, requested by the court, confirmed her story of abuse In addition, the judge heard that area community leaders would welcome a non-custodial sentence for Aswani, although some concerns were expressed about traditional observances.
Judge Aburili said the facts established ‘killing in self-defence’, although it seemed that Aswani had used ‘excessive force’ in defending herself.
She accepted that Aswani had been living a life of fear and that on the night on which he died, he was ‘ready’ to carry out his threats to kill his wife. Having tortured her previously to get the title deed out of her, on that night he was determined to kill his wife instead.
The facts show that for the wife in this case it was a case of kill or be killed.
Quoting a study on battered women, published in the USA, the judge said a similar situation prevailed in Kenya where ‘domestic violence through wife beating is a norm’. And she concluded that there could be no doubt that Aswani was a victimised woman whose work in the household of her husband was ‘vilified through domestic violence’.
She found Aswani killed her husband in self defence but ‘applied excessive force’ which meant she could not escape without some punishment. Clearly Aswani should have a non-custodial sentence, she said. This would allow her to be given counselling so she could recover from the traumatic experience of her marriage. She should not be punished harshly as she was a victim of torture and gender-based violence. ‘She had no voice. She was silenced into accepting that beatings were her normal life. She is lucky to be alive.’
Then the judge addressed others who might be in a situation similar to that of Aswani. Their voices should be heard, she said and she encouraged them to report to any law enforcement agency or a suitable non-governmental organisation. ‘Run for your lives,’ she urged. ‘Find an escape route to safety.’
‘Do not condone violence being meted on you!’ She said they should become people who escape ‘from the jaws of the lion’, rather than people on whom hyenas prey.
She then sentenced Aswani to one day in prison – the day of her sentencing – to end when the court adjourned.
Further she ordered that Aswani should be helped from witness expenses to reach a place of safety, where officials should organise that she receive counselling so that she could recover from the trauma caused by her husband.