Lawyers are up in arms over the application of the Sexual Offences Act, which they say is biased against boys who have consensual sex with girls who are also minors.
The debate has been raging in the corridors of justice in recent weeks, with lawyers representing teenage boys questioning the legality and morality of a law that criminalises male while protecting females.
That loophole, they say, has been used by parents and guardians of the girls who, knowing too well that the law assumes their daughters committed no wrong in engaging in underage sex, are now using the provisions of the statute to extort the families of the young boys.
Among these young boys is 16-year-old Griffin (the Nation is concealing his real name for legal and ethical reasons), who in 2008 met Anita, also 16, at a funeral.
The two started dating and before long the girl, who was a Form Two student, told Griffin that she was uncomfortable living with her older brother, who, she claimed, mistreated her.
A few days later, on December 14, 2008, Anita packed her bags and moved into Griffin’s small house.
The boy, shocked at first at the turn of events, welcomed the girl to stay with him for the night, but that simple gesture of hospitality would the following day land him in trouble.
Her parents were busy looking for her and had reported her missing to the police.
The two were on December 20 summoned to the assistant chief’s office and while there, the boy admitted having sex with the girl.
Both families met at the administrator’s office, where it was agreed that Griffin’s family pay that of his girlfriend Sh13,000 as compensation.
However, while his family was still struggling to fulfil the agreement, the other family disowned the deal, prompting the matter to be referred to the police station after the children were both arrested.
Further reconciliation attempts at the police station failed, leading to the release of the girl, while Griffin was charged with defilement.
On her own account, Anita admitted befriending and having sex with Griffin for some time, albeit in secrecy.
She said: “I had been doing so with the hope of settling down with Griffin for lack of a conducive environment back home.”
Griffin was later found guilty by a Children’s Court and placed under a three-year probation.
Meanwhile, Franklin, 17, left his girlfriend Damaris, 16, in the house to go to school.
While at school, his teachers told him that they had received information that a female student, who was missing from the school, was in his house.
He was later arrested and charged with defilement and an alternative charge of an indecent act with a child contrary to the Sexual Offences Act.
The Children’s Court heard that the two had been dating since January 2011 and were planning to get married after the boy finished his exams later that year.
The girl had been to his house on other occasions where they had sex.
Franklin pleaded not guilty and was tried, convicted and sentenced to 15 years imprisonment, pushing him to challenge the decision at the High Court.
Through his lawyer, Franklin argued that since females mature faster than their male counterparts, it is Damaris who had influence over him, a fact that ought to have been taken into account by the court.
“Having been tried and convicted alone amounted to selective judgment and, therefore, violated Article 27 of the Constitution on equality and freedom from discrimination,” his lawyer submitted.
Further, he argued that both of them were minors and therefore none of would have had undue influence over the other, adding that being a minor at the time of trial, his rights were violated since he was not sentenced as a child.
Justice James Wakiaga, in a judgment delivered in June last year, while overturning the sentence, said the teenager, through his lawyer, had raised an issue that is very fundamental — that both Damaris and Franklin were minors and therefore, when an act has been outlawed by an operation of the law and has been engaged in consensually by the parties, they both ought to be punished for the same offence.
“The question which the trial court failed to answer is as to who between the two minors penetrated the sexual organ of the other,” said Justice Wakiaga.
The judge added that there is a need for lawmakers to look at the definition of the word penetration under the Sexual Offences Act, saying the definition seems to be against the male gender.
“Whereas the law outlaws sexual acts with minors, where the offence involves the minors themselves it would be in the best interests of justice for the courts to look at the conduct of the parties, including how the complaint is filed, so as to protect the boy child too from discrimination,” he said.
Franklin walked to freedom albeit a more informed citizen, when the judge said he finds that the conviction of Franklin was not safe and therefore allowed the appeal, set aside the sentence and ordered that he be released immediately from custody.
Confronted with a similar situation in a case involving two other minors who engaged in consensual sex, Justice Fred Ochieng, while declining to declare Sections 8 (1) and II (1) of the Sexual Offences Act unconstitutional, and also refusing to release a boy we will call Felix, said he found that the young man had brought to the fore a critical concern.
In particular, he said, the case had brought forth the need to consider whether or not there are other measurements that were more appropriate and desirable for dealing with children without having to resort to criminal proceedings.
“To this end, I send out a challenge to professionals in matters of children psychology and in the overall wellness of children, to conduct appropriate studies in Kenya with a view to ascertaining if there were measures and procedures which could be put in place to offer protection to children whilst simultaneously being proportional to both the circumstances of the child and the offence,” said Justice Ochieng.
Felix, through his lawyer, had told the court: “The statutory provisions, in practice, promote disproportionate prosecution of the male child in incidents of consensual sexual acts between minors, even when it was clear that the female child was a willing participant in the sexual acts.”
The Law Society of Kenya's North Rift chapter, which had joined the case as a friend of the court, pointed out that if the two children were to be punished for engaging in sex, that would be appropriate.
The law was applied in a discriminatory manner when it was only Felix who was charged while his girlfriend, Joyce, got off scot-free.
LACK OF INFORMATION
Legal experts are of the opinion that ignorance of the law has contributed to the high number of cases of children engaging in sex.
Lawyer Miriam Wachira from Pendekezo Letu, a lobby group that defends the rights of vulnerable communities, says most of the boys are not even aware that it is a crime to have sex with girlfriends who are their own age.
Lawyer Oscar Sang says many boys have had their dreams of an education shattered when they were held in juvenile remand homes (after their parents failed to raise bond), awaiting the conclusion of their cases, which in most cases, drag on for years.
Others have been convicted and are serving their sentences, either in probation hostels or borstals across the county. This, as the girls who engaged in sex with them are going on with their lives.
A Court Users Committee in Kakamega County observed that there is an upsurge in cases of defilement in which both parties are juveniles aged between 15 and 17 years.
It pointed out that no proper consideration was made of both parties being minors while enacting the law.
Among the shared experiences were instances where some girls threatened to commit suicide if cases against their boyfriends were not withdrawn.
And police said they often forward cases to courts to avoid blame and to satisfy the demands of victims’ parents.
“We recommend consultations between police and the Director of Public Prosecutions before charges are preferred against the minors. We also believe there is [a] need to implore parents to discuss the issue as this category of juveniles is increasingly becoming vulnerable,” observed the committee in its minutes.
The committee is made up of magistrates, the DCIO, the OCPD, religious leaders, faith-based organisations, children’s officers, the Law Society of Kenya and prison representatives, among others.
Justice Wakiaga said, in relation to a 15-year sentence meted out on a boy, that the Children’s Act provides that no child shall be imprisoned or placed in a detention camp.
Section 190 provides for how to deal with a child offender.
“These rights have now been given constitutional basis under Article 53(1) (f) which states every child has a right not to be detained except as a measure of last resort and when detained for the shortest and appropriate period of time,” said Justice Wakiaga.
Justice Ochieng, however, holds a different opinion. According to him, when a person commits an act that causes penetration with a child, he has committed defilement.
“The absence, or otherwise, of consent from the child is not a factor,” said Justice Ochieng.
The judge noted that in Kenya, there is no express or implied requirement that when two children are involved in sexual penetration with each other, both of them should be charged with the offence of defilement.
However, there is no legal bar to the prosecution preferring criminal charges against both children. In effect, if the prosecution had reasonable cause to charge both minors, it could do so.
Justice Ochieng said the discriminatory application of a law, if established, is wrong. But such conduct by the person who exercises it does not render the law itself discriminatory.
A state counsel told a court that the Constitution has not legalised consensual sex between minors and therefore, when the Sexual Offences Act criminalises such acts, it is not inconsistent with the Constitution.
Further, the counsel said, the girl’s consent could not be an acceptable excuse for committing the offence because minors are not capable, in law, of giving consent, and that invaliding the contested statutory provisions would be repugnant to the morality of children.
The boy's failure to resume learning at his school, having been granted bond or bail, and being unable to raise it, is not attributable to the DPP.
“Even if he had remained in prison, nowadays, there are informal learning centres within our prisons. In effect, the boy could have continued his education even if he had remained behind bars,” explained a lawyer for the DPP in the matter before Justice Ochieng.