Kenya: Consenting Minors Sex Not Criminal, Says Lobby

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(file photo).
15 November 2019

A lobby group has called upon the government to decriminalise consensual sex between minors to end the injustice faced, especially by boys, when caught in the act.

The Centre for Reproductive Rights on Friday issued a briefing paper to the government of Kenya asking it to revise the Sexual Offences Act to cut down on the number of adolescents being sent to jail for having consensual sex with their peers.

The lobby called upon the government to amend the Sexual Offences Act by decriminalising non-coercive and non-exploitative sexual conduct among adolescent minors.

"The Sexual Offences Act does not make any distinction between sex among adolescent minors and sexual acts between adolescent minors and adults, all of which are classified and have been interpreted as criminal offences," the brief stated.

According to the group, adolescent males have been imprisoned and, in some cases, ended up with a permanent criminal record for engaging in consensual sexual conduct with other adolescents.

"The Kenyan Constitution affirms that adolescents have an inherent right to health, including reproductive health. Criminalisation of adolescent-to-adolescent minor's sexual encounter without exception therefore unjustifiably restricts constitutional guarantees for adolescents," said Ms Evelyne Opondo, regional director for Africa at the Centre for Reproductive Rights.

In the brief, the lobby also called on the government to establish a clear directive on "adolescent minors' access to sexual and reproductive health information services that take into consideration their privacy, confidentiality and evolving capacity" as per international human rights obligations.

In supporting their argument, the group argued some judges, in determining defilement charges involving sexual conduct between two adolescents, have expressed their discomfort with the criminalisation of such conduct where there was demonstrated agreement by both parties. In this regard, some judges have recognised that adolescents may have capacity to consent to sexual intercourse.

In the Court of Appeal case of Eliud Waweru Wambui V. Republic, the court noted: "Where to draw the line for what is elsewhere referred to as statutory rape is a matter that calls for serious and open discussion."

According to the 2014 Kenya Demographic and Health Survey (KDHS), slightly more than half of Kenyans have sexual relations by the age of 18 years. While a portion of this includes coerced sex, many adolescents also have non-coercive and non-exploitative sexual intercourse with other adolescents during this period of life as they seek to understand their sexuality.

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