There is a raging debate on whether to raise or lower the age of consent, which is 18 years in Kenya. The debate went a notch higher last week when one of the judges being interviewed for the post of Chief Justice was said to have set free a man charged for having sex with a 13-year-old girl.
According to Kenyan law, sexual intercourse with a person aged under 18 is illegal. In this case, the accused argued that the minor deceived him about her age and that he reasonably believed that she was over 18.
However, a columnist wrote that irrespective of consent, the girl was a minor.
In fact, a children’s officer was once quoted in Kiswahili saying, “mtoto hakubaliwi ku kubali” literally meaning that a child is not allowed to accept to have sex even if it is consensual. Many want the age of consent lowered; others want it raised. This article attempts to analyse the argument, giving the pros and cons.
Those opposed to lowering the age of consent argue that changing the law will have negative consequences. They contend that anybody below 18 is still underdeveloped and cannot make informed decisions.
In fact, they say even a 21-year-old cannot yet make informed decisions. Thus lowering the age of consent will lead to an increase in promiscuity, which is already being driven by new media, and programmes targeting children purportedly promoting children’s rights.
By engaging in early sex, there is an increase in child and teenage pregnancies, abandoned babies and young teen mothers with teen boys who are not ready to be fathers.
In addition to that, lowering the age of consent creates the demand for contraceptives, and when they fail, cases of abortion increase.
The opponents of lowering consent age suggest that more value should be given to the institution of the family for mentorship and growth. This is what has maintained the African family since time immemorial.
The African tradition when mixed with religious teachings advocate sexual purity before marriage. Parents are accused of abdicating their parental responsibility to organisations who do not care about the children.
Many parents object to the idea of lowering the age of consent and prefer the strengthening of the institution of the family to take charge of their children’s growth and development. This responsibility cannot be left to the government.
From a socio-economic side, if the age of consent is lowered, it will be legal to employ teenagers. This will be a major setback considering that we want to achieve a certain level of literacy in society.
School dropout levels may rise and the gains made with empowerment of the girl child may be undone by early marriages and pregnancies.
A study commissioned by SRHR Africa Trust (SAT) says that the age of consent should not be set higher than 16 and that there should be no distinction between young men and young women.
It also recommends that the government should put in place “close in age” exceptions to the age of sexual consent so that young adolescents having consensual sex with one another do not have to go to jail – a travesty affecting young men aged between 13 and 16.
The study recommends that there should be a statutory provision to protect adolescents from predatory adults, an argument that seems to contradict the earlier recommendation, considering that the current law on age of consent exists to protect children.
The report also recommends the need to clarify and or lower the age of consent, for example, in accessing sexual health and reproductive services, HIV-related services such as testing, access to Pre-Exposure Prophylaxis (PrEP) and Post-exposure Prophylaxis (PEP).
There are cultures and traditions of different communities in Kenya that promote child engagement. Some religions also allow marriage of children as young as 16 years. The question is who gains and who loses from the existing age of consent?
Looking at the diverse opinions, it is clear that what we need is not to revise the age of consent, but rather to have continuous civic education and a honest discussion about this topic, understand the reasoning behind the laws in place to protect the rights of children and how the moral fabric can be maintained.
The challenge of Covid-19 and lockdowns calls for more measures to protect children and lowering the age of consent can make them more vulnerable.