Kenya debates lowering age of consent from 18 to 16
While some point to the number of teenage boys jailed for consensual sex, others fear gender equality gains could be lost
Kenya’s judges and child welfare organisations are embroiled in a fresh debate on whether to lower the age of consent.
Some members of the judiciary believe the age of consent should be lowered from 18 to 16 for heterosexual acts (gay sex is criminalised at any age, punishable by up to 14 years in prison) because boys and girls have “reached the age of discretion and are able to make intelligent and informed decisions about their lives and their bodies”.
According to the Kenya Demographic and Health Survey, 15% of women and 22% of men aged between 20 and 50 had their first sexual experience by the age of 15. Nearly a quarter of Kenyan women gave birth before 18.
Proponents say lowering the age of consent will reduce the number of teenage boys convicted and jailed for “defilement” (the abuse of a child in Kenyan law) after having consensual sex with a girl.
They are concerned that aspects of the country’s Sexual Offences Act conflict with the Children’s Act, and disproportionately punish teenage boys.
The Sexual Offences Act does not make exemptions for any child found guilty of sexual offences. Children are punished as adults and remanded in custody with adults. It has no specific provisions on how to deal with a case where two minors are involved.
The Children’s Act, however, states that minors – those under the age of 18 – are to be tried in a children’s court, unless charged with a capital offence, such as murder. When a child is found guilty in a children’s court, they should be, among other measures, put under the care of a “fit person, whether a relative or not, or a charitable children’s institution willing to undertake his care”, rather than be sent to jail.
Debate on the issue of consent has been ongoing since a controversial ruling in 2016, when Justice Said Chitembwe, who was recently considered for the post of Kenya’s chief justice, freed a 24-year-old man who had been jailed for the statutory rape of a 13-year-old girl. In his ruling, he stated that “she was behaving like a fully grown-up woman who was already engaging and enjoying sex with men.”
The judge added: “It is true that under the Sexual Offences Act, a child below 18 years old cannot give consent to sexual intercourse. However, where the child behaves like an adult and willingly sneaks into men’s houses for purposes of having sex, the court ought to treat such a child as a grown-up who knows what she is doing.”
The ruling received international condemnation, with the Women’s Link Worldwide awarding it the 2017 Gold Bludgeon award because it set a “dangerous precedent assuming that girls who consent to sex before age 18 should not be afforded special protection”.
But a national debate on lowering the age of consent to 16 was sparked two years ago after three judges of the appellate court reversed a 15-year sentence on a man, who was over 18, accused of the statutory rape of a 17-year-old girl. The man had already served eight years in jail.
“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 call for serious interrogation,” said the judges.
Public forums and discussions followed, but a final report, Minimum Age of Consent for Sex: Addressing the Dilemma, recommended that the age of consent remain at 18, adding that any reduction could negate gains made by the country on gender equality.
It stated that the primary objective of the minimum age of sexual consent should be to protect children and adolescents from any form of sexual abuse and the consequences of early sexual activity on their rights and development.
Joyce Mutinda, who chairs the National Gender and Equality Commission, said people under the age of 18 are incapable of making comprehensive decisions and judgments about their sexuality: “Children under 18 are not adequately developed socially, mentally, and psychologically to consent to sex. Earlier sexual debut exposes children to physical and psychological effects.”
However, the debate has been reopened in the past weeks by the high court judge Luka Kimaru. During public hearings by the Power of Mercy Advisory Committee, which is currently reviewing some of the country’s laws, Justice Kimaru said: “Challenges arise when teenagers experiment when they try to discover their sexuality. Some of them go overboard, and that is why we have these teen pregnancies. Most of these relationships are more or less consensual.
“A teenage boy and a teenage girl have sex – you can call it consensual – it is the boy who is punished and the girl who is not. And yet they did it together consensually.
“The law does not consider a girl or a boy who is under 18 to have the capacity to give consent. But the social reality is that these things are happening. When this is criminalised, it creates another injustice. The aspect of the offender is a minor is often forgotten.”
During his interview for the post of chief justice earlier this month, Chitembwe said that, while the law found anyone who “defiled” a person under 18 guilty, the practicality of implementing the legislation needed to be reviewed.
The law states that a person who commits a sexual offence against a child should be imprisoned for at least 15 years.
“How do you take a 19-year-old man to 15 years in jail for having a relationship with a 17-year-old girl?” he asked the panel.
A 2016 audit of Kenya’s justice system stated that young boys are more at risk of falling foul of the sexual offences law than girls and that the former lack social systems to cushion them from such vulnerabilities.
“While a range of programmes is available for vulnerable girls, there is an absence of programmes for boy children. Interventions which seek to reduce the vulnerability of boy children to be in conflict with the law should be investigated,” stated the National Council on the Administration of Justice.
Although the report on the age of consent did not call for a lowering of the age, it did recommend amendments to the Sexual Offences Act and Children’s Act to protect children from having consensual sex.