Judges: Boys unfairly punished for consensual sex

Court of Appeal judges Prof Otieno Odek, Patrick Kiage, GB Kariuki, William Oruko and Jamila Mohammed during a past proceeding. [Standard].

The Court of Appeal has freed a 26-year-old herds boy who had been jailed for defiling a teen after it found that the sex was consensual.

While making the ruling, judges Patrick Kiage, Otieno Odek and Asike Makhandia raised concern that the sexual offence Act could be skewed against the boy child.

During the hearing, It emerged that the accused, Evans Wanjala Siibi, was jailed by the magistrate’s court while he was 17 years for defiling a girl named in court papers as SMS.

She was two years younger than him. Mr Siibi was slapped with 20 years in jail.

His appeal at the High Court was dismissed on June 9, 2015

The appeal judges noted that courts are usually overzealous while applying the Sexual Offences Act in protection of the girl child.

But unfortunately, the case is different while dealing with the boy child.

“Once again the unfair consequences of a skewed application of that statute predominantly against the male adolescent is quite apparent: two youths caught engaging in sex receive diametrically opposite treatment,” the judges ruled.

“The girl is branded a victim and guided to turn against her youthful paramour while the boy, Juliet’s Romeo, is branded the villain, hauled before the courts and visited with a lengthy jail term. A supposed justice resting on the shaky foundation of injustice against young boys hardly warrants the term.”

According to the judges, Siibi’s incarceration was wrong since at the time of the offence, he was just a child who was jailed with adult offenders. 

They observed that he ought to have been counselled alongside his young lover.

At the same time, the court noted that Siibi defended himself as the case proceeded in all the three courts.

The Judges said it was unfair that no one counselled him to take up the services of a State lawyer, since he could not afford a private one.

“It bears repeating that trial courts must be more vigilant to ensure that young persons in conflict with the law are accorded the full protection afforded by various constitutional and statutory guarantees and safeguards that exist in our laws," the judges ruled

"It is time we were more deliberately solicitous of the best interest of children. We do so, not so much out of some mushy-mushy sentimentality, but out of an acute recognition of the special space that children occupy and as a constitutional and statutory command.

During the proceedings, the court heard that Siibi was caught in the act with SMS in 2010.

The girl testified that she and Siibi had sex three times before they were caught by her mother.

It is the same court that in March this year proposed a change in law to lower the age of consent to 16 years.

The three judges, Roselyn Nambuye, 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.