Not for the first time, Kenya is discussing the possibility of amending the Sexual Offences Act to lower the age of consent from 18 to 16 years. The discussion is highlighting the issue of predatory exposure and the responsibility of society in safeguarding the rights of children.
Three Kenyan Court of Appeal judges, Daniel Musinga, Roselyn Nambuye and Patrick Kiage, have brought forth a proposal to amend the Sexual Offences Act and lower the age of consent from 18 to 16 years.
According to the news site Citizen Digital, the judges argue that young people may not have attained the age of maturity but they may well have reached the age of discretion to make intelligent and informed decisions about their lives and their bodies.
According to the judges, the country should discuss challenges of maturing children, morality, autonomy, protection of children and the need for proportionality in punishing sex offenders. They went on to say that the discussion is overdue as men were languishing in jail for sleeping with teens "who were willing to be and appeared to be adults".
"Our prisons are teeming with young men serving lengthy sentences for having had sexual intercourse with adolescent girls whose consent has been held to be immaterial because they were under 18 years," the judges stated.
"They may not have attained the age of maturity but they may well have reached the age of discretion and are able to make intelligent and informed decisions about their lives and their bodies. That is the mystery of growing up, which is a process, and not a series of disjointed leaps," they observed.
"We need to add, as we dispose of this appeal, that the Act does cry out for a serious re-examination in a sober and pragmatic manner."
To demonstrate their argument towards autonomy and individual consent, they cited a case in which a man, Eliud Waweru, was imprisoned after he impregnated a girl who had just completed high school. Waweru was only arrested and charged after he failed to pay the dowry agreed upon with the girls' parents.
Appeal judges referred to his case as a situation where courts were called in "to enforce with mindless zeal that which offends all notions of rationality and proportionality".
"This appeal epitomises for the umpteenth time the unfair consequences that are inherent in a critical enforcement of the Sexual Offences Act, No 3 of 2006, and the unquestioning imposition of some of its penal provisions, which could easily lead to a statute-backed purveyance of harm, prejudice and injustice, quite apart from the noble intentions of the legislation," the court ruled.
"The question that arises is whether it is lawful for a girl who is already over 18 years and is a mother, and who has chosen not to testify against the father of her child, whom she considers to be her husband, to be locked up to force her to testify. Waweru is like Shakespeare's King Lear, a man more sinned against than sinning," the judges observed.
Romeo and Juliet scenario
In the initial discussions the amendment proposal arose from the reality that many young boys are being held in Kenyan jails for sexual offences that were perpetuated by engaging in sex with girls of their age in what is termed as a "Romeo and Juliet" scenario.
In this scenario a small age difference may protect individuals from criminal charges after engaging in sexual activity with a minor.
This specific concession to the Sexual Offences Act would be ideal in countries with laws that enforce an age of consent because these are the only laws that result in a child being both a victim and offender of a crime merely due to age.
The Sexual Offences Act in question, enacted in 2006, was considered a landmark law that would reduce cases of sexual abuse, harassment and violence, as well as early and forced child marriages. It stipulates that persons under the age of 18 years are considered children and therefore cannot give consent. It is a crime for anyone to engage in sex with a child.
When the initial amendment to reduce the age of consent was rejected in 2017, former Health Permanent Secretary, Dr James Nyikal, said, "Biological and social maturity are not the same thing. These young adults cannot take responsibility."
Priscilla Nyokabi, the Nyeri Women Representative at the time, argued, "The overall intent of the law was to protect women, children, boys and girls." She noted: "The original intent was to create a country safe for women and girls."