After watching the series When they see us, I am more encouraged to contribute to the sensitive debate on implementation of Sexual Offences Act (2016) in Kenya.
The emotional series based on the case of the Central Park Five teenagers, who were falsely charged with rape, depicts how a justice system, if driven by emotions and malice, can lead to unimaginable destruction.
At a time when there is a lot of conversation on the nature of the mandatory minimum sentences provided for by the Act, reducing the age of consent, protection of minors and abuse of the law to settle other differences, sobriety and objectivity must be applied when discussing this matter.
In my opinion, the age of consent should not be reduced and children must be protected by the law at all times.
This must however be done without discrimination on basis of gender and must reflect the rule of natural justice.
I condemn all forms of sexual harassment and gender-based violence to whichever gender and/or sexual orientation.
I disapprove of any form of sexual exploitation based on any grounds, including but not limited to marital rape and the barbaric acts of “straightening” bisexual and lesbian women.
I advocate for the full implementation of the Act on whoever breaches the law.
Having said that, allow me to share my thoughts and experiences on the habitual abuse of a law that is meant to defend all of us.
According to an investigation by the Daily Nation, 6,458 sexual offenders were charged in different courts across the country last year.
Recently, Mr Philip Lang’at, a secondary schoolteacher who had been interdicted on allegations of impregnating a student, was let off the hook after DNA results indicated he was not the father of the baby!
There are also reports of an increasing number of men ending up in prison for sexual offences in comparison to other crimes. When did Kenyan men turn to be such beasts?
The first victims of the sexual offences law are teenage boys who unknowingly find themselves on the wrong side of the law.
Most of these teenagers are often in “consenting” relationships with girls their ages or slightly younger.
Let us be honest; a recent survey has shown that teenagers as young as 13 are engaging in sex.
A survey carried out in 2013 by research firm Consumer Insight showed that four in every 10 youth aged between 13 and 19 had engaged in sex.
It’s not a pleasant thing to write or discuss, neither am I encouraging it because we are a “morally upright” society; but this is the bitter truth.
The Sexual Offences Act selectively protects minors based on their gender.
Although in a good number of these cases the girl in question would be the accused’s girlfriend, the boy as young as 15 ends up serving long prison sentences.
There are several court decisions that have questioned the intention and applicability of the law when it is clear that it has been used to victimise a male minor.
In June 2015, Justice James Wakiaga delivered a judgment that overturned a sentence passed on a teenage boy who through his lawyer had raised a fundamental issue.
The lawyer argued that both the accused and the girl 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.
These 'Romeo and Juliet' cases ought to be looked at carefully and the law applied with an intention of protecting all the children.
The second victims of the Act are male adults who due to family feuds, land ownership and matrimonial property rows and other reasons end up in prison.
In a report by Joseph Wangui on August 16, 2018 in the Daily Nation, Wangui highlighted the case of a 68-year-old retired agricultural extension officer in Tetu, Nyeri, identified as JID.
JID was implicated by a neighbour who used the Sexual Offence Act to “settle” a land dispute. Unlike many others, JID was acquitted.
It is therefore time that we relooked at how best we can use the Sexual Offences Act for its intended purpose and avoid any malicious use.
The policymakers and shapers should not just sit in their offices but also make time to listen to those who are affected by these policies. Justice must remain objective and impartial.
The writer is the legal aid manager at African Prisons Project; [email protected]; @MuthuriKathure