Greetings from Mercy Kareithi & Co. Advocates; we bring you our quarterly update and hope it will inform your operations and services.
We are keen to highlight on the trending proposals to lower the age of consent to sex. On 22nd March 2019, the Court of Appeal Judges in Nairobi Criminal Appeal No. 102 of 2016, Eliud Waweru Wambui Vs. Republic (http://kenyalaw.org/caselaw/cases/view/170043/ ) recommended that discussions and interrogations be held on lowering the age for consent from current 18 years to 16 years, in light of realities and challenges of maturity, morality, autonomy and protection of children. This is a great child protection concern as the age of majority in Kenya remains 18 years. In their words: –
“Where to draw the line for what is elsewhere referred to as statutory rape is a matter that calls for serious and open discussion. In England, for instance, only sex with persons less than the age of 16, which is the age of consent, is criminalized and even then, the sentences are much less stiff at a maximum of 2 years for children between 14 to 16 years of age. See Archbold Criminal Pleading, Evidence and Practice, [2002] p1720. The same goes for a great many other jurisdictions. 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.”
This recommendation is not isolated. In Eldoret H.C. Petition 6/2013, C.K.W Versus A.G & DPP (http://kenyalaw.org/caselaw/cases/view/100510/ ), Justice Ochieng had recommended research on mechanisms and procedures which could be put in place to offer protection to children whilst simultaneously being proportionate to both the circumstances of the child and the offence.
For related deliberation is what to do with a “Romeo and Juliet” situation, where two (2) minors engage in consensual sex. Such questions as “does a boy under 18 years have the legal capacity to consent to sex?” “Haven’t both children defiled themselves?”. “Shouldn’t both then be charged or better still shouldn’t the children’s officer be involved… I think these are children who need guidance and counselling, rather than criminal penal sanctions”. The case of Homabay High Court Constitution petition 1/2017, P.O.O (a minor) Vs. ODPP & SRM Mbita law courts (http://kenyalaw.org/caselaw/cases/view/140634/) could offer insights. The South African case of Teddy Bear Clinic for Absued Children also offers insights on the enormous challenge. (http://www.saflii.org/za/cases/ZACC/2013/35.html )
Please air your views to the concerned government agencies, for your perspective to be considered. The Sexual offences Act, the Children’s Act and the Constitution will sure be of help in the analysis. In our next update, we shall focus on fair administrative action in the education sector.
Stay woke; with best wishes.
