The opinion held by three Court of Appeal judges that a national discourse is needed over appropriate sexual consent age has elicited condemnation from minors and victims of early pregnancies.
Justices Roselyne Nambuye, Daniel Musinga and Patrick Kiange on March 22 said a discussion about this topic is long overdue.
But children say the discourse may sire a legal regime that is likely to expose children, mostly helpless girls, to sexual abuse.
The judges set aside a 15-year jail term handed to a convict of defilement by a Thika court and set him free. Eliud Wambui had been handed the sentence in 2014 after conviction, and the sentence was upheld by High Court judge Lydia Achonde after he made his first appeal.
He had been found guilty of defiling a girl he had married in 2009, when she was 17 years and five months old. Wambui's wife was a form four student, but the judges said that alone would not rule out a reasonable belief that she would be over 18 years old.
The judges said they think it stands to reason that a person is more likely to be deceived into believing a child is over 18 if the child is in the age bracket of 16 to 18 years old.
“The act does cry out for a serious re-examination in a sober, pragmatic manner. Many other jurisdictions criminalise only sexual conduct with children of a younger age than 16 years. We think it is rather unrealistic to assume that teenagers and maturing adults do not engage in, and often seek sexual activity, with their eyes fully open,” they said, quoting a UK court decision.
“They may not have attained the age of maturity but they may well have reached the age of discretion, and are able to make intelligent and informed decisions about their lives and their bodies. That is the mystery of growing up, which is a process, and not a series of disjointed leaps.”
They may not have attained the age of maturity but they may well have reached the age of discretion, and are able to make intelligent and informed decisions about their lives and their bodies.
DECEPTIVE ADOLESCENT GIRLS
Some men are duped by lustful and seductive adolescent girls who act like adults, then get in trouble with the law because of the provisions of Sexual Offences Act, while others are outright paedophiles intentionally preying on minors.
The three judges said the closer to 18 years the child is, the more likely the deception, and the more likely the belief he or she is over 18.
And they agreed with Wambui's claims he reasonably believed the complainant was over the age of 18 years.
"A candid national conversation on this sensitive yet important issue implicating the challenges of maturing, morality, autonomy, protection of children and the need for proportionality is long overdue," the judges said.
The three appellate judges said it is relevant to point out that a child need not deceive by way of actively telling a lie that she is over the age of 18 years.
The trio said where to draw the line for what is referred to as statutory rape is a matter that calls for serious and open discussion.
"In England, for instance, only sex with persons less than the age of 16, which is the age of consent, is criminalised, and even then, the sentences are much less stiff, at a maximum of two years for children between 14 to 16 years of age," they ruled.
The judges said the number of 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 is on the increase.
"The wisdom and justice of this unfolding tragedy calls for serious interrogation," they pointed out.
RECIPE FOR MOLESTATION
They suggested a review of consent age from 18 to 16, but this drew criticism from minors and women who were early mums, who feel girls will be exposed to danger.
The critics say this is a recipe for child molestation because most girls at this age are still vulnerable to manipulation and less informed on sexual issues, adding that it amounts to introducing discretion for judicial officers to pass lesser penalties for convicts of defilement.
A 16-year-old girl who dropped out of school early this year for lack of school fees argues that reducing the consent age to 16 will open the floodgates to girl child abuse.
"At this age [16], most girls are still ignorant of the things they ought to be aware of before making decisions about certain issues, like consenting to sex and bearing its consequences. The reason why it has always been 18 is to allow one to finish schooling, where they acquire information and attain adulthood," said Halima* (not real name), who aspires to be a journalist.
"It will mostly affect orphaned children and those from poor backgrounds because it means if your parents or relatives choose to marry you off at that age, the law cannot protect you because you are presumed an adult, despite the fact that the marriage was planned against your will and your opinion does not count during making of such decisions. The judges should have sought children's views about this topic and gotten their interests."
Fatuma, 28, is a single mother of four, who has been in three marriages. The first man duped her that he wanted to marry her and later abandoned her with two children.
"Every man who marries me now wants a child with me, but they later leave because they don't want to raise the other men's children. I am struggling to raise and educate my daughter, and this proposal is very scaring," she said.
Another 16-year-old, a class six pupil at a school in Kayole, expressed fears for children's safety. The minor says lowering the age to 16 will limit parental care because of the assumption of maturity and expose them to danger.
She said the court should be cognisant of the wider spectrum of consequences that could arise due to the lowering of the consent age.
We should be talking about raising this age to 20 or 21 because that is when one has matured and is well exposed, hence well informed.
SEXUAL SAFETY
Dr Mary Njoroge, a Nairobi-based gynaeocologist, said a child at 16 has not fully grown and the cervix is still premature.
The reproductive system of girls in that age is not fully developed for sexual activity, and it is not the appropriate age for pregnancy, she said, adding that women who have early sexual debut are also more exposed to cervical cancer.
Dr Njoroge said since children below 18 are dependent on their parents financially and on everything else, lowing the consent age will be giving room to sex pests to prey on children who don't have bargaining power.
She said the consent age review is not suitable in a social set up where sex education is limited or unavailable, and issues of contraceptives are not well ingrained in the society.
Dr Njoroge said if the consent age is lowered, there is going to be a lot of harm on children. They lack the mental capacity to decide on terms for protection, and the bargaining power to determine what they want with their sexual partner.
"Why would we now say they can have sex when they are not able to negotiate for sexual safety? They might not be well informed on issues like STIs and how to protect themselves. The earlier you engage in sex, the earlier you expose yourself to things like STIs," she said.
"It is a dangerous decision to take for both boys and girls. We are going to have a lot of unplanned pregnancies and social problems because these children have no financial power to manage the consequences of engaging in unplanned sexual activity."
A 32-year-old mother of three says she had her first child at 17, which was followed by three miscarriages due to cervical problems.
She has had partial paralysis of her right leg, which doctors told her is as a result of the early pregnancy and over-straining during childbirth.
"We should be talking about raising this age to 20 or 21 because that is when one has matured and is well exposed, hence well informed. Lowering this age means declaring minors in that age bracket marriageable, yet if they marry at that age, they are always prisoners in such marriages because the husband is always having a suspicion that you could be planning to run away," she said.
