By Nur El-Kathiri
Petition No. 6 of 2013: Ckw vs. Attorney General & Another  eKLR
Legislation against sexual interactions with minors encompassed in the Sexual Offences Act in Kenya has corresponding punitive measures enacted by Parliament. The issue in debate is the just nature of subjecting minors to the same punitive measures as adult offenders.
This was a constitutional petition whose ruling was issued on July 25, 2014, at the High Court of Kenya (Eldoret) by the Honourable Fred A. Ochieng.
The Petitioner is a male minor charged with the offence of defiling a female minor at his residence, contrary to Section 8 (1) as read with Section 8 (4) of the Sexual Offences Act. The accused was 16 years of age at the time of the offence, which occurred on the May 26, 2013.
The Petitioner maintains that the complainant was a willing participant and that she was, in fact, his girlfriend at the time.
The Petitioner had these charges preferred against him and prosecution instituted by Criminal Case No. 1901 of 2013 at the Chief Magistrate’s Court in Eldoret. Upon the application by the Petitioner, the court granted him bond. However, the Petitioner could not meet the bond requirements and was therefore kept in remand pending the trial of the criminal case.
Because the Petitioner lacked the requisite legal capacity, this Petition was instituted for him by his Advocate, and the substantive relief sought was a declaration that Sections 8 (1) and 11 (1) of the Sexual Offences Act are invalid, to the extent that they criminalise consensual sexual relationships between adolescents.
The main legal issues in this petition are: whether the criminalisation of the adolescent consensual sex is inconsistent with the rights of children under the Constitution, and whether the application of the laws against defilement are gender and age biased.
The Court held that Sections 8(1) and 11(1) of the Sexual Offences Act on defilement are not unconstitutional or inconsisted with the Constitutional rights of a child; and that Sections 8(1) and 11(1) of the Sexual Offences Act are not gender biased against the male child or age biased against minors.
The Court found that although the provisions in Section 8(1) and 11(1) did not clearly state that both children could be prosecuted for the offence of defilement, it did not bar the preferring of charges against both minors involved. To rationalise this finding, the judge relied on Section 15 of the Sexual Offences Act of South Africa, which provides that if a prosecution is instituted for a charge of Statutory Rape, both the children involved must be prosecuted; put differently, if two adolescents engage in sexual penetration with one another, each will be guilty of having statutorily raped the other.
The honourable judge also stated that it would be wrong to argue that the laws legislated that criminalise the act of defilement are unconstitutional because the purpose of said laws is to protect the children in general from such acts. The more rational argument would be that the application, and not the law itself, was wrongly exercised.
Further, on the issue of discrimination against minors on the basis of age, the court relied on the same Section 8(1) and 11(1) in that these provisions criminalised the act of defilement by both adults and minors, and that the ultimate goal of these provisions was to protect minors from moral indecency. Overall, the Court’s rationale was that the substantive issue raised in the petition ought not to have been the unconstitutionality of the laws as a whole, but perhaps the need for less harsh punishments for consenting minors.
The Court also maintained that although the Petitioner had remained in remand and failed to attend school as a result, the Magistrates Court had indeed granted him Bond, thus affording him an opportunity to remain out of police custody pending the conclusion of his trial. The Petitioner was, however, unable to meet the bond requirements as is due procedure. To therefore allege that his constitutional rights as a child had been infringed by the court would be a gross misstatement. The judge further maintained, that there are informal education programmes, amongst others, for children in remand that ensure that all other rights afforded to children are observed and respected despite their incarceration.
This comment will argue that the honourable High Court was correct to find that the Petition had failed to present reasonable grounds and sufficient evidence to declare Sections 8(1) and 11(1) entirely unconstitutional.
One of the main purposes of the punitive nature of the law is to deter others from similar offences. The importance of protecting children from moral indecency and sexual immorality is one that was appreciated by the legislators when they enacted the provisions on defilement. On this basis, it would be repugnant to justice to find that enforcement of these provisions is in breach of children’s rights under Articles 27(5) and 53 of the Constitution.
Further, it would be false to claim that the provisions of the Sexual Offences Act are discriminatory against the male child. This is because the law does not bar the Petitioner from lodging a complaint against the female minor who is the complainant. Further, there is no evidence adduced by the Petitioner in this matter to show that there have been frequent incidences of gender bias in the preferal of charges against male accused persons; there was insufficient evidence to persuade the Court to find that this was indeed the case.
I agree with the Court’s decision to dismiss the Petition in that one cannot claim unconstitutionality of certain provisions of the law to escape being subjected to punitive measures for crimes that they have committed. That would render the laws ineffective in their actual mandate. The sanctity of the laws in their role of preserving social order and morality ought not to be loosely challenged on the basis of alleged inconsistency with Constitutional rights.
In this case, the court refused to compromise on the importance and need to punish individuals for sexual offences against children, whether another child or an adult. The sanctity of the enforcement of the laws that protect children must be respected. However, enforcing punishment against a child offender that is at the same level of harshness as those enforced against adults is unfair and perhaps there is a need for the professionals in that field to look into more child appropriate measures of rehabilitation and deterrence.