Senior judges facing JSC panel want sex among teenagers decriminalised

Members of the Judicial Service Commission led by Chief Justice David Maraga at Re-Insurance Plaza in Nairobi during the recruitment of Court of Appeal judges. PHOTO | DENNIS ONSONGO | NATION MEDIA GROUP

What you need to know:

  • Justice Lesiit said in most cases, it is the boy who suffers as the girl becomes the complainant.
  • The judges said many other countries criminalise only sexual conduct with children of a younger age than 16 years.

A judge has called for the decriminalisation of sex among teenagers, stating that in her view, they are children behaving badly as opposed to committing an offence.

Making her views when she appeared before the eleven-member panel of the Judicial Service Commission (JSC), Justice Jessie Lesiit said such teenagers need to be counselled and not taken to court. The JSC is recruiting Court of Appeal judges.

Justice Lesiit, who is also the presiding judge of the Criminal Division of the High Court, said in most cases, it is the boy who suffers as the girl becomes the complainant.

ADOLESCENTS

“If it is among adolescents, with an age difference of may be two years, such cases should not find their way to courts. We should handle them as children. I look at it as children behaving badly. In such cases, there is no consent,” she said.

Justice Lesiit, who has been a judge for 16-and-a-half years, said she was happy the Supreme Court declared mandatory death sentence unconstitutional.

Justice Luka Kimaru, another judge of the Criminal Division of the High Court, told the JSC that he was worried that persons convicted under the Sexual Offences Act would soon surpass other offences.

“Yes the number is growing at an alarming rate,” he said, supporting sentiments by Justice Lesiit that oftentimes, girls are forced to become complainants by their parents.

Recently, a bench of three judges of the Court of Appeal suggested what they termed “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”.

SEXUAL INTERCOURSE

Justices Roselyn Nambuye, Daniel Musinga and Patrick Kiage noted that the prisons are teeming with 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.

“The wisdom and justice of this unfolding tragedy calls for serious interrogation,” the judges said as they freed a man who had been jailed for 15 years for defiling a minor.

Evidence presented in court was that the girl was 17-and-a-half years but she was married to the man and all was well until she got pregnant and the matter took another angle. The parents at one point tried negotiating with a view to settling the matter and the man was asked to pay dowry.

The judges said many other countries 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 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,” the judges said.

The judges quashed both the sentence and conviction stating that it was not safe because the sentence imposed on the basis of a mandatory minimum was clearly harsh and excessive.

And recently, another bench declared sections of the Sexual Offenses Act, which relate to mandatory life sentence for those convicted, unconstitutional.

The law, which was promulgated in 2006 and sponsored by Supreme Court Judge Njoki Ndung’u, then a Nominated MP, has had its fair share of challenges especially on its implementation and on several occasions, judicial officers have called for changes.

Judicial officers have always complained that the law is too punitive to young men and male minors as it creates the impression that only men are the offenders.

CONSENSUAL SEX

Significantly, judges and magistrates have argued that the law targeted the male child and failed to address consensual sex, especially where the boy and the girl are minors. They have also pushed for the lowering of sentences.

In a unanimous decision, three appellate judges may have exorcised ghosts of some of the issues judicial officers have been raising when they ruled that Section 8 (1) of the Act is unconstitutional as it deprives the court the use of judicial discretion when handling matters under the Act.

Justices Daniel Musinga, Kathurima M’Inoti and Agnes Murgor sitting in Kisumu argued in a criminal appeal that the mandatory nature deprives the courts of their legitimate jurisdiction to exercise discretion not to give life sentences in an appropriate case.