Judges split on age of consent and punishment

Kenyans debate on sexual offences law, sentencing, and justice system reform shaping criminal law policy. [iStock]

In 2019, the Court of Appeal sparked debate over whether Kenya was imposing overly harsh punishment on teenagers involved in sexual relationships and whether the age of consent should be lowered 18  or 16 years.

While the Supreme Court declared mandatory death sentence was illegal, the lower courts followed with declarations that Sexual Offences Act was also unconstitutional for having mandatory sentences.

Supreme Court judge Njoki Ndung’u, who was the drafter of the Act,  in her paper presented before her colleagues after the Court of Appeal judgment, argued that the case before the apex court was on death sentence hence could not be applied in other criminal cases like defilement and rape.

Justice Njoki was of the view that the sexual offences do not give judicial officers an opportunity to vary the sentences meted out on a sexual offender, hence anyone caught in it should not get anything lower than the prescribed jail term.

Unconstitutional

“There is need to uphold mandatory minimums where they have not been challenged and declared unconstitutional. Where there is specific and reasoned provision for minimum sentences the courts ought to uphold them. To do otherwise means that judges are in essence imposing a lesser penalty than what is required by law without actually striking down the offending provision,” she said.

In March the same year, the Court of Appeal proposed a change in law to lower the age of consent to 16 years.

Three judges, Roselyn Nambuye (now retired), Daniel Musinga and Patrick Kiage, ruled that time was ripe for the country to consider changing the Sexual Offences Act, citing lengthy jail terms imposed on young men convicted of defilement.

They made the observation in a case where they reversed a 15-year sentence slapped on a teen who had impregnated a 17-year-old girl. 

According to the judges, the country should discuss challenges of maturing children, morality, autonomy, protection of children and the need for proportionality in punishing sex pests.

They said debate on lowering age of sexual consent was long overdue as men were languishing in jail for sleeping with teens “who were willing to be and appeared to be adults”.

Lengthy sentences

The judges in their verdict in March this year referred to the sentences as an unfolding tragedy.

“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 judges ruled.

Following the verdict, former Chief Justice David Maraga in May 2019  joined those rallying for change of Sexual Offences Act to factor in growing number of adolescents engaging in sex.

Maraga proposed that judges and magistrates “should be left to deal with the minors” who engage in consensual sex, instead of lowering the consensual age to 16 or continuing to jail offenders.

 “This is one of the areas I have had serious difficulties with, the boys and girls are our children. I have no problem when the perpetrator is an old man, but when it comes to boys and girls between the age of say 17 and 20,” he said regretting that the boy had suffered in the Act under defilement.

The Act provides that a person arrested for defiling a minor aged between 12 and 15 should be jailed for more than 20 years while those nabbed for having sex with minors between 16 and 18 years get 15 years minimum.

However, Justice Njoki was of the view that the new approach by courts to give lean sentences was equally dangerous as it would encourage others to engage in illicit sex.

 She observed that the solution to the debate for Parliament whether the Act had served its purpose. 

‘‘I believe that we are hostage (willingly or unwillingly) to a rape -culture. Because we subscribe to a rape- culture that has ingrained itself to our socialisation and created implicit biases that we accept as normal, we have done little to change it.”