- The judges said the Sexual Offences Act needs serious re-examination in a sober and pragmatic manner.
In an attempt to tackle the problem of young people getting exposed to sex early, some countries have significantly lowered the marriageable age to reduce conflict with the law.
Judges have for long been calling for a review of the sexual offences law in a bid to have clauses on minimum sentences changed.
Defilement — sex with a child under the age of 18 — is a crime under the Act.
The law has mainly seen minors and young adults end up in jail, for engaging in sex with their age mates.
Defilement of a child aged 11 and below carries a life imprisonment sentence; 12 to 15 years, a 20-year jail term; while one would be liable for a 15-year sentence for having sex with children aged between 16 and 18.
Judicial officers have in different forums said they are not fully exercising their discretion in determining sexual offences before them, argue that each case ought to be determined on its own merit and the circumstances relating to it.
However, recent developments in courts appear to have addressed the concerns while Parliament and the Attorney General are still dilly-dallying.
The courts are borrowing heavily from a verdict by a full bench of the Supreme Court on December 14, 2017, which declared mandatory death sentence to be unconstitutional as it had restricted judges to only one sentence — death.
Court of Appeal judge Martha Koome, who is also the chairperson of the National Council on the Administration of Justice (NCAJ) special task force on children’s matters, says with the Supreme Court verdict, judges have been able to apply their mind in a case-by-case basis as opposed to instances where minors are jailed for long irrespective of circumstances.
The age of consent in Kenya is 18 and any minors found having a hanky-panky will have committed an offence punishable under the Sexual Offences Act.
“What has helped us is the Supreme Court ruling on mandatory death sentence. Sentencing, like the superior court had observed, is a judicial function and the law should not decide for the court. That judgment has been used when we get such kinds of cases,” Justice Koome said.
She is, however, opposed to calls to have the age of consent lowered from 18, saying it may lead to other unforeseen challenges, including early marriages. “Whatever age of consent that we will have, there is the possibility of marriage. These are the real issues that we have not thought of and found answers to. The next thing after sex is marriage,” Justice Koome said.
ROMEO AND JULIET
The NCAJ was formed in 2016 and did research in Nyandarua, Kisumu, Kilifi, Nairobi, Makueni, Narok, Bungoma and Garissa counties.
In their 2019 report, the task force says an analysis of police records reveals that the bulk of pending cases in Kenyan courts relating to children’s matters between 2016 and 2018 are sexual offences, which account for 69.48 per cent of all pending cases involving children in the eight counties sampled.
Most of the cases reported to the police are “Romeo and Juliet” types. Common in this category are cases in which both the complainant and the accused are below the age of 18.