Justice Bahati Mwamuye’s decision this week in HSA, AMO, TA & Another Vs Attorney General on the prosecution of adolescents under the Sexual Offences Act is a welcome relief. Many of us have protested the injurious impact on the welfare and dignity of adolescents caught within the law’s web due to its rigidity.
Let me start with an important declaration, which Justice Mwamuye restates ad-infinitum in his judgment; the Sexual Offences Act is a necessary law to curb sexual exploitation of minors in a country with its share of sexual predators.
The law’s rejection of the concept of consent by minors is a rational recognition that children lack the psychological and cognitive maturity to appreciate the consequences of sexual activity.
The concern, however, which the court failed to recognise in the 2014 case of CKW Vs Attorney General, dealing with similar circumstances, is the tension between the laudable intentions of the law and the problems of its practical application.
CKW and earlier decisions failed to recognise the injustice produced by the law’s blanket presumptions on adolescent behaviour and its rejection of context.
They also failed to question whether criminalisation is always the ideal panacea for social problems, including those relating to the sexual behaviour of adolescents. Justice Mwamuye’s approach was brave and insightful.
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It resulted in a profound and overdue victory for both constitutional fidelity and common sense. By declaring the imposition of criminal sanctions on non-exploitative, consensual sexual conduct between adolescents unconstitutional, the court has not only corrected a systemic legal injustice but has also realigned Kenya’s approach with the core values of dignity, equality, and the best interests of the child.
The judgment’s primary strength lies in its unequivocal termination of the law’s blanket enforcement, which had failed to distinguish between predatory abuse and peer relationships.
The Sexual Offences Act, as previously applied, criminalised all sexual activity involving persons under 18. As Justice Mwamuye correctly found, this approach violated fundamental constitutional protections, including the right to proportionality considerations under Article 27, the right to privacy, human dignity, and equality, specifically under Articles 28, 31, 43, and 53 of the Constitution.
By forcing prosecutors and police to differentiate between coercive exploitation and consensual, close-in-age adolescent conduct, the ruling saves young people from being branded as criminals for normal developmental behaviour, however morally unacceptable such behaviour may be, a reform that rights advocates say is long overdue.
Furthermore, the ruling is an exemplary model of judicial restraint and practical wisdom. Crucially, Justice Mwamuye did not strike down the contested sections of the Sexual Offences Act, which remain in full force to punish abuse. Instead, he mandated that the law be “read in a manner consistent with the Constitution”.
The injustice of law had already been recognised in policy by the Director of Public Prosecutions, who disclosed that the Office’s internal regulations prohibited prosecution of minors for consensual sexual conduct with peers.
The court, while lauding the ODPP for its progressive prosecutorial practice, expressed its concern that such a policy had no constitutional or legal standing and was therefore neither uniformly applied across investigative agencies nor consistently applied by trial courts at the point of plea or charge.
In the court’s view, on such an important issue implicating right of citizens, the correct approach is the production and formalisation of constitutionally compliant and publicly accessible supervisory directions that align prosecutorial practice, police enforcement, and trial practice. This progressive and pragmatic approach preserves the state’s power to protect children while simultaneously invalidating its punitive overreach.
Justice Mwamuye’s consequential orders demonstrate a deep understanding of holistic reform, directing not just police and prosecutors, but also health, education, and child protection agencies to develop coordinated policies that allow adolescents to access sexual and reproductive health services without fear of criminalisation. Ultimately, the judgment is a triumph of humanity over rigid legalism.
By centering the argument on the principles of “best interest of the child” and “children deserve protection, not punishment,” the court has shifted the discourse from one of condemnation to one of support.
It explicitly recognises the developmental realities of adolescence, ensuring that the law serves as a shield rather than a sword, marking a major turning point in how Kenya, and potentially the region, treats adolescent sexuality and justice.
-The writer is an advocate of the High Court of Kenya