LAW ON DEFILEMENT: A TIME FOR REFORM
Authored by Francis B. Joseph
ABSTRACT
Like some other African countries, Kenya has the legal age of consent at 18 years. The legal age of consent is a crucial facet of legal and social frameworks concerning sexual relationships. This has had the effect of restricting adolescent consensual sexual conduct. Legislation does not explicitly criminalize consensual adolescent sexual conduct. However, punitive approaches have been put in place to curb such conduct. Adolescents have therefore been subjected to violation of their rights. The laws put in place are not necessarily benevolent to the adolescents who it is designed to protect from harm. This article provides a comprehensive analysis of the legal age of consent in Kenya, examining the statutory frameworks on it and its effect on sexual relations among adolescents. Through a comparative lens, the article briefly looks into the legal age of consent in other African jurisdictions. By synthesizing these different aspects, this article aims to inform on the need for law reform on the legal age of consent and eventual decriminalization of consensual adolescent sex with the recognition of developmental realities and rights of the child.
INTRODUCTION
The law regulating sexual conduct in Kenya is the Sexual Offences Act No. 5 of 2006. The Bill was sponsored by appointed Member of Parliament Njoki Ndung’u, currently a justice of the Supreme Court of Kenya. She was not a dry analyst fiddling with verbal distinction whilst matters escalated but was the vanguard of a movement which labored with passion intensity and much success to bring about a better society and better laws. The Act was and still remains a major milepost on the law on sexual offences. It came just at a perfect time in response to a perceived rise in cases of rape and defilement to a penal system that defined sex crimes as offences against morality to a criminal code that enjoined maximum but no minimum sentences for sexual offences and to a judiciary that appeared not to treat sexual offences with sufficient gravity. [1]
Indeed, sexual offences leave a very bitter taste in the mouths of the victims and their close relatives. [2] It was thus important to have the Act come into force. The law is not static but dynamic, responding to changes in the society. In this regard, laws may at times need to be reformed to ensure effectiveness in application and responsiveness to the social, cultural and economic needs of the society. When it comes to the Sexual Offences Act, of importance to this article is the law on defilement as provided for under section 8 of the Act. Section 8(1) provides that a person who commits an act of penetration with a child is guilty of an offence termed defilement. As can be seen from the aforementioned provision of law, there is no implication as to matters consent but only that the victim must be a child under the age of 18 years.
This paper’s main focus is consensual adolescent sex in Kenya. In a bid to suggest reforms in the law, I endeavor to bring out the state of affairs with regard to the matter, that is, the law as per the Statute and judicial precedents then get the perspectives of other African countries with regard to the same.
CONSENSUAL ADOLESCENT SEX
Young people are nowadays getting exposed to sex at a very young age. According to a research on family planning commissioned by Performance Monitoring Action Kenya, out of every ten adolescents in the country, 6 of them were driven by curiosity to their first sexual encounter. [3] Another illustration of this is the increased number of teenage pregnancies that were evident during the COVID-19 lockdown period. The Committee on the Rights of the Child (CRC) in its General Comment No. 20 on the implementation of the rights of a child during adolescence enjoins State parties to balance protection and evolving capacities when defining an acceptable legal age for sexual consent. [4]
Premise articulated by the CRC was that adolescence is a unique defining stage of human development characterized by rapid brain development and physical growth, enhanced cognitive ability, the onset of puberty and sexual awareness and newly emerging abilities, strengths and skills. [5]
Offences committed where there is consensual sexual activity have been described by some courts as statutory rape. As per the law in Kenya, the legal age of consent is 18 years. A person below that age is considered a child and therefore cannot consent to any matter or transaction. It is natural that the growth of children into puberty comes along with sexual activity, with some of the adolescents engaging in coitus as a matter of experimentation. Such conduct has however been criminalized in Kenya. Section 8(3) and (4) of the Sexual Offences Act create the offence of defilement with respect to children aged 12 – 15 years and 16 – 18 years respectively, with the sentences stated therein. Section 8 fails to take into consideration the issue of consensual adolescent sex. For this reason, courts have taken different approaches with respect to the matter.
In CKW v Attorney General and Another, [6] the petitioner (a minor) was charged with defilement contrary to section 8(1) as read with section 8(4) of the Sexual offences Act. The particulars of the offence were that the petitioner had intentionally and unlawfully caused penetration with a girl, J, aged 16 years. According to the petitioner, J was his girlfriend and that the sexual act between the two of them was consensual. The petitioner challenged the validity of the offences created under section 8 and 11 of the Sexual Offences Act to the extent that they were inconsistent with rights of children under the Constitution. The court held that criminalization of consensual sexual conduct between adolescents was in the best interest of the child, to protect children from harmful acts of sexual activity and that the law that seeks to offer them such protection as they need is not unconstitutional. Ochieng’ J went further and stated:
“However, before I conclude this ruling, I do express my sincere gratitude to the petitioner for taking a bold step to tackling an issue which would have ordinarily remained unspoken. Although he was unsuccessful, I find that he has brought to the fore the need to consider whether or not there are other measures which are more appropriate and desirable for dealing with children without having to resort to criminal proceedings.” [7]
The sentiments articulated by Ochieng’ J clearly show that there needs to be some changes if not reforms in matters pertaining to children.
One other interesting case in relation to consensual sexual activities in which minors are involved is the unpopular case of Martin Charo v Republic. [8] I wish not to analyze the whole case as that is subject for another different and lengthy discussion. The only aspect I wish to bring out is that of consent by minors. Of importance to this discussion is the complainant’s testimony. During cross-examination, the complainant, a 14 year old girl stated:
“I came to see you, have sex then I go back home. When my brother came, you were inside your house. You are Martin Charo. On 2.1.2012 we were together.”
It is for this testimony that Chitembwe J remarked:
“That is the complainant's evidence on cross examination. The question then is, do the circumstances of the case paint a picture of someone who was defiled? Can we say that the appellant took advantage of a young girl and defiled her? The circumstances clearly show that it is the complainant who went to the appellant's house to have sex and then go home. She even dodged her brothers. When her brothers went there at night to collect her, she opted to remain with the appellant. If she was a young girl then why did she go to the appellant's home to have sex?
… It is the law that a child below the age of 18 years cannot consent to sex. Section 8 (5) qualifies the provisions of Section 8 (1) to 8 (4) which penalizes defilement. It can easily be concluded that it is immoral for one to have sex with a child under the age of 18 years. However, where the same child under 18 years who is protected by the law opts to go into men's houses for sex and then goes home, why should the court conclude that such a person was defiled?” [9]
Chitembwe J gave a brief comparative analysis. He mentioned of Spain where the age of consent was 13 years then later increased to 16 years and other countries such as Austria, Belgium, Bulgaria, Switzerland, Czech Republic, Germany, UK and Hungary where children can get married at the age of 16 years with parental consent. Perhaps the decision by Chitembwe J was a bit ahead of time.
COMPARATIVE ANALYSIS
Unlike Chitembwe J, I wish to bring the comparative analysis closer home. In Angola, Botswana, Malawi, Mozambique, South Africa, Zambia and Zimbabwe, sexual relations with a person below the age of 16 years is criminalized. In Democratic Republic of Congo, Madagascar and Namibia, the age of consent is 14 years while in Comoros it is 13 years. In Teddy Bear Clinic v Minister of Justice and Constitutional Development, [10] the Constitutional Court of South Africa held that criminalization of consensual sexual conduct is a form of stigmatization which is degrading and evasive thus the human dignity of the adolescents targeted by such provisions is infringed.
Justice Amy Tsanga lamented in State v Brian Masuku that criminalizing consensual sex between adolescents punishes them. [11] She opined that if the State continued in its formalistic approach, ignoring the reality of teenage sex, it could only result in unnecessary punitive sentences but also a criminal record and stigmatization of the offender.
CONCLUSION
The Legislature must wake up to the reality that teenage sex happens in this country and that it is attributable to adolescent exploration by children. Maintaining the Sexual Offences Act as it was since 2006 is detrimental and oppressive to adolescents. Being cognizant that the adolescents have rights, the States have a mandate to ensure that the age of consent does not violate the rights of adolescents for their decision on their sexuality. [12] If at all adolescent sex has to be criminalized then the law should be clear in differentiating situations of consensual adolescent exploration, which should be exempted, from situations where there is coercion or manipulation. It is therefore proper, prudent, just and in the interest of justice, fairness, equity, constitutionalism, natural justice and protection of rights and fundamental freedoms that the Parliament reforms the law on defilement, especially with respect to consensual adolescent sexual activities and the legal age of consent.
REFERENCES
1. Brett Shadle, ‘Sexual Offences in Kenya: 1960s to 2008’ [2010] 2 KLJ
2. Kiarie Waweru, ‘The Sexual Offences Act: Omissions and Ambiguities’ (2007)
4. Committee on the Rights of the Child (CRC) ‘General Comment 20’in ‘Implementation of the Rights of a Child during Adolescence’ (6 December 2016) UN Doc CRC/C/GC/20
5. ibid at paragraph 10
6. [2014] eKLR
7. Ibid at paragraph 102
8. [2016] eKLR
9. ibid at page 3-4
10. [2013] ZACC 35
11. State v Brian Masuku [2015] ZWHHC 106 (High Court of Zimbabwe)
12. Godfrey Dalitso & Ann Skeleton, 'Decriminalizing Adolescent Sex: A Rights Based Assessment of Age of Consent Laws in Eastern & Southern Africa' (2018)
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