Boy’s case ruling big step for child rights
Judge Hellen Omondi of the Homa Bay High Court. Her recent ruling where she freed a 17-year old boy who had been held in an adult prison for a year is a big step in realising child rights. PHOTO | BARACK ODUOR | NATION MEDIA GROUP
What you need to know:
The judge ruled that the State had discriminated against the boy and abused his right to be treated as a child.
The court further recognised the lack of coherence in the law as the boy was charged alone, whereas, in accordance with the Sexual Offences Act, he could not have consented to sex basing on his age and therefore, he, too, was a victim of defilement.
This case is just one of many where the youth have been sent to jail for engaging in what should be considered ordinary developmental process—which is distinguishable from sexual abuse and exploitation, whether by another minor or an adult.
Last week, Justice Hellen Omondi made a significant step towards the realisation of adolescents’ rights in Kenya: She ordered the release of a 17-year-old boy who had been remanded in an adult prison for one year.
When the boy’s girlfriend became pregnant, her parents reported their sexual activity to the police. He was arrested and charged with defiling a minor—even though he is also a minor and there was, seemingly, no evidence to suggest that both were not willing participants.
The judge ruled that the State had discriminated against the boy and abused his right to be treated as a child. The court further recognised the lack of coherence in the law as the boy was charged alone, whereas, in accordance with the Sexual Offences Act, he could not have consented to sex basing on his age and therefore, he, too, was a victim of defilement.
This case is just one of many where the youth have been sent to jail for engaging in what should be considered ordinary developmental process—which is distinguishable from sexual abuse and exploitation, whether by another minor or an adult.
GUILTY
In a similar case from 2014, a 16-year-old boy found guilty of defiling his girlfriend of the same age challenged the decision, saying the Act was unconstitutional to the extent that it criminalised consensual sex between adolescents.
But, although the High Court dismissed his claim, it recognised that he had brought to the fore “the need to consider whether or not there are other measures which were more appropriate and desirable for dealing with children without having to resort to criminal proceedings”.
The intent of the Sexual Offences Act was to protect minors from coercive and involuntary sexual activity.
However, it is becoming increasingly clear that some teenagers engage in sexual activity even before the legally defined age of consent.
CRIMINALISE
The law, which on its face criminalises anyone who has not attained the age of majority for engaging in consensual sexual conduct with their peers, imposes a sentence of up to 15 years imprisonment.
But this law is in contradiction with the reality in Kenya, where a fifth of girls give birth as teenagers and half of all adolescents engage in sex before they reach 18, according to the 2014 Kenya Demographic and Health Survey.
While it is essential that we take measures to address sexual violence in Kenya, we need to acknowledge that teenagers engage in autonomous acts of sexual experimentation.
Does handling these cases in this way protect the public or the supposed victims?
UNDERMINES RIGHTS
The strict application of the Act, which incriminates minors, undermines laws and policies meant to advance their rights. One such is National Policy on Adolescent Sexual and Reproductive Health, which aims to enable adolescents to access appropriate sexual and reproductive healthcare, cutting unwanted pregnancies and sexually transmitted infections.
The Constitution states that the best interests of the child are of paramount importance, but this interest is clearly not served by jailing adolescents in this manner. In releasing the boy and calling for reform to the Act, Justice Omondi recognised its injustices.
Let us do more to ensure that adolescents have access to comprehensive sexuality education, which arms them with information to protect themselves, and access to reproductive health services they may need, including access to contraception. This will help to prevent STIs and safeguard against unsafe abortions.
Severe complications of unsafe abortions are most common among girls and women aged 10-19, according to a Ministry of Health study. We must, therefore, find a way to address this challenge.
If we took all these critical steps, adolescents would truly exercise their reproductive rights in line with the Constitution’s promise: Protecting the right to health, including reproductive healthcare, and the best interests of the child.
Ms Opondo is the Senior Regional Director for Africa, Center for Reproductive Rights, and Ms Omondi the Executive Director, Federation of Women Lawyers-Kenya (Fida-Kenya). [email protected].
