The Centre for Reproductive Rights (CRR) has called on government of Kenya to review the Sexual Offences Act (SOA) to reduce the number of adolescents being sent to jail for having consensual sex with their peers.
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/or have been interpreted as criminal offences. The SOA also does not make any distinction between non-coercive and non-exploitative and coercive and exploitative sexual conduct between minors, and therefore criminalizes the sexual conduct among adolescents. Consequently, adolescent males have been imprisoned and, in some cases, have 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 adolescents to adolescent minor’s sexual encounter without exception therefore unjustifiably restricts constitutional guarantees for adolescents,” said Evelyne Opondo, Regional Director for Africa at the CRR.
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 as part of a common phase during this period of life which includes experimentation and curiosity to understand their sexuality.
On the question of consent, some judges, in determining defilement charges involving sexual conduct between two adolescents, have expressed their discomfort with the criminalization of such conduct where there was demonstrated agreement on the part of both parties to engage in such conduct. In that regard, some judges have recognised that adolescents may have capacity to consent to sexual intercourse.
Sexual Offences Act does not distinguish sex among adolescent minors and those between minors.
The Court of Appeal in ‘Eliud Waweru Wambui v Republic’, Criminal Appeal No. 102 of 2016 held thus:“Where to draw the line for what is elsewhere referred to as statutory rape is a matter that calls for serious and open discussion… A candid national conversation on this sensitive yet important issue implicating the challenges of maturing, morality, autonomy, protection of children and the need for proportionality is long overdue. 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 wisdom and justice of this unfolding tragedy calls for serious interrogation.”
Among the policy and regulatory suggestions CRR proposes are to: amend the Sexual Offences Act by decriminalising non-coercive and non-exploitative sexual conduct among adolescent minors; establishing a clear directive on adolescent minors’ access to sexual and reproductive health information services that takes into consideration their privacy, confidentiality and evolving capacity, as per international human rights obligations; and adopting and implementing curricula on age-appropriate comprehensive sexuality education, including information about issues of violence, that is provided throughout schooling and undertake public education campaigns on sexuality to reach out-of-school adolescents.
The case of DOB
In 2018, DOB was a 16-year-old Form Three student living in a village in Western Kenya. He had a 14-year-old girlfriend – YB, also from the same village. The fact of their relationship was well known to their neighbours, parents and relatives. According to DOB and his mother, both minors had several sexual encounters with each other. In the same year, YB’s grandmother accused DOB of defiling her granddaughter. He was arrested, charged and sentenced to serve 20 years in prison – the maximum penalty. Despite being a minor, he was processed as an adult – court records erroneously indicated that he was 19 years at the time of the offence. His birth certificate, however, shows that he was 17 years old. Nobody ascertained his age during the entire trial. DOB is serving time in Kodiaga Prison for an egregious procedural omission.