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Sex at 16? Why debate on the age of consent has gone a notch higher in Kenya

By Gatonye Gathura | Dec 25th 2016 | 4 min read
Policy makers want the age of consent reduced to protect the boy-child

At 18, Kenya’s minimum sex age limit ranks her among the old maids of the world.

An amendment to the Sexual Offences Act presented to Parliament through The Statue Law (Miscellaneous Amendment Bill) 2016 now wants to lower the age for consensual sex from 18 to 16 years. But going by global trends, the suggestion to lower the age of consent to 16 is hardly jaw-dropping compared to age 12 in Mexico, 13 in the Koreas, 14 in Canada and 15 in Sweden. The average global limit is 16 years

It is criminal for anybody to have sex with a girl under 18 years old. But if the proposed amendment goes through, it will be legal for 16-year olds to engage in sex.

The amendment has already gone through the first reading with the public invited to present their views by Tuesday. Already, a petition is circulating around asking parents to oppose the proposed changes.

It is an obligation of the United Nations Convention on the Rights of the Child (UNCRC), which Kenya is a signatory, that member countries legislate a minimum age for sexual consent.

Although the convention does not have a one-size-fits-all kind of prescription, it recommends 13 on the lower side. The upper limit, it says, should not be too high. The UN seems to be comfortable with a minimum age of consent of between 14 and 16. The agreed age limit, the convention says, should avoid the over-criminalisation of adolescents’ behaviour, hence preventing access to services like sex education, birth control products and abortion services, a space Kenya has been under intense external pressure to expand.

Already, the proposal to lower the age of consent to 16 years has attracted opposition from a section of Muslim clerics and the Kenya Films Classification Board (KFCB) who see this as part of a protracted effort to wrestle child sex issues from the community to third parties.

“It is okay to protect children but it is wrong to handle it from the perspective of this law,” said Ezekiel Mutua, the head of KFCB on Wednesday.

At a workshop with Muslim clerics in Mombasa, Mutua wondered why the push now and demanded evidence warranting a change of the age of consent at this point in time.

Sheikh Mohamed Khalifa, the Organising Secretary of the Council of Imams and Preachers of Kenya, says proponents of the change of age of consent must explain their reasons well.

In 2014, Nominated Senator Judith Sijeny introduced the acrimonious Reproductive Heath Care Bill 2014, which among others suggested a significantly lower age at which sex education could be administered in Kenya.

The Bill, which has stalled at the Senate, had described adolescents as those aged between 10 and 19 and had initially prescribed sex education, services and products without necessarily seeking parental consent.

Despite strong public opposition to the Bill, the Ministry of Health went ahead to develop the National Adolescent Sexual and Reproductive Health Policy 2015. Funded by the US and UK governments, the policy targets children aged between 10 and 19 with sexual and reproductive health services.

“These services should be offered in a non-judgmental and confidential way that fully respects human dignity,” says the document shared with the Education ministry.

But with Sijeny’s Bill in limbo, the policy lacks the necessary legal backing. Consequently, groups opposed to sex education and services to minors see the proposed age limit amendment as yet another attempt to achieve what the Sijeny Bill has failed to do. The Adolescent Reproductive Health Policy signed by Dr Nicholas Muraguri, the Health PS, says while the legal sex limit is at 18, many younger children are engaging in sex.

“Adolescents between the ages of 10 and 19 years represent about nine per cent of persons living with HIV and 13 per cent of all HIV-related deaths in Kenya,” says the policy document.

Citing the various Kenya Demographic and Health Surveys (KDHS), the new policy document says about 12 per cent of girls and 22 per cent of boys have had sex by the age of 15. “Similarly, 37 per cent of girls and 44 per cent of boys aged 15 to 19 years have had sex.”

The policy document says girls below the age of 19 accounted for 17 per cent of all women seeking post-abortion care services and about 45 per cent of all severe abortion-related admissions in Kenyan hospitals. The ministry blames this on lack education on contraceptives, their availability and affordability especially for the young ones who are not married.

“It is estimated that about 13,000 Kenyan girls drop out of school annually due to early and unintended pregnancy,” says the policy document.

Providing more evidence that the young are not as innocent as many believe, the ministry says about two per cent of females and four per cent of males aged 10-14 and about 11 per cent of 15- to 17-year olds are into alcohol. “Alcohol is the source of much evil including irresponsible and illegal sex.”

But according to KDHS documents, the ministry says six per cent of girls are married by age 15 and 26 per cent by age 18. A higher percentage of this, 31, reside in rural areas compared to 16 in urban settings. This practice is highest in North Eastern, 56 per cent, and Coast, 41; and lowest in Nairobi at seven per cent.

Confronted with these statistics, the Ministry of Health says it is justified to promote an “enabling legal and socio-cultural environment for provision of sex education and products to adolescents.”

Federation of Women Lawyers (FIDA-Kenya), who have proposed the current amendment to the Sexual Offences Act, says this is meant to protect boys from being victimised by their girlfriends’ parents. Fida Chairperson Josephine Mon’gare says the boy-child has become the unintended victim of the Sexual Offences Act.


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