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Teenager adds twist to row over age of consent

By Kamau Muthoni | Aug 4th 2019 | 3 min read
A Class Eight pupil who was allegedly defiled and impregnated by a head teacher. [File, Standard]

A case filed by a 14-year-old girl has rekindled the debate on whether the country should lower the age of consent.

The minor, only identified as FAM, alongside the Federation of Women lawyers (Fida) want the court to clarify charging, trial, detention, conviction and sentencing of minors who engage in illicit sex.

According to FAM, there are conflicting judgments on what should be done as some judges are sending teenagers to jail while others have proposed lowering the age of consent.

“As a result of such discourses there is no clarity as to the legal provisions and there is a threat to violation of children’s rights as envisaged in the Constitution if no clear guideline judgment and or pronouncement is made,” Court documents read in part.

Ill treatment

However, FAM argues that she does not support lowering the age of consent but is opposed to ill treatment of child offenders held for engaging in consensual sex. She argues that girls under the age of 18 are likely to suffer early pregnancies and disruption of education if the age of consent is lowered.

FAM says that it is against the rights of children to be treated as adults. “As a result of wrong and unlawful treatment and or handling of child sex offenders, the group of person that the first and second petitioner represent have suffered and will continue to suffer prejudice occasioned by the sentencing of children in the same manner as adults instead of prescribing age- appropriate measures,” court papers read.

According to the girl, boys below the age of 18 make up one out of 27 men languishing in jails for engaging in sex with minors. To buttress her argument, she attached statistics from Kodiaga Prison in Kisumu which reveal that out of 835 males convicted for sexual offences, 32 are young men who have transitioned in jail from being minors to 18 years.

According to the statistics, all the teens in Kodiaga are serving at least 30 years sentence. She observed that whilst majority were charged and tried when they were children, the conviction and sentencing was issued when they were adults.

Court of Appeal sparked the debate on whether the country should review sexual offences Act to lower the age of consent to 16 years.

Justices Roselyn Nambuye, Daniel Musinga and Patrick Kiage, declared 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 said debate on lowering age of consent was long overdue as men were languishing in jail for sleeping with teens “who were willing to be and appeared to be adults.”

Willful relations

“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. They observed that underage girls and boys often engage in sexual relations “with their eyes fully open” (willfully).

But FAM argues that children engaging in sex should not be construed as consenting but engaging in a risky behaviour. “Children engaging in risky behavior like sex ought to get guidance and protection from parents, guardians and the State,” she says.

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