A storm is brewing following the conviction of a 24-year-old woman who was handed a 15-year sentence for having sex with a boy of 16.
Many have called for the sentence to be reversed, terming it unfair, especially because the woman stated in her defence that she met the boy in a pub where he was drinking and smoking.
She also stated that at the time they met, the boy had dreadlocks, all of which made him look like an adult.
Even as the public calls for the woman to be released, the mood was completely different two years ago when Malindi High Court Judge Said Juma Chitembwe set free a 24-year-old man who had been jailed for 20 years for engaging in sex with a girl of 13.
Judge Chitembwe faced the wrath of child rights and gender activists, including Women’s Link Worldwide, a global gender movement which voted the decision as the worst in 2016 for children and gender rights.
In arriving at his decision, the judge had considered evidence that the girl sneaked into the appellant’s house repeatedly for sex and even refused to leave with her brothers who had gone to collect her.
In his opinion, the girl behaved like an adult who was enjoying sex rather than a child victim of defilement.
There is no denying that teenagers are often impressionable and can easily be seduced into sex by older people.
In such circumstances, even though the minor has agreed to sex, he or she does not fully understand the act and the responsibilities that may result from the encounter.
However, with proper education, younger people can learn the dangers that come with irresponsible sex and how to avoid such risks.
This is particularly important in cases involving minors having consensual sex with each other.
In most cases, it is only the boy who ends up in jail for defiling the girl even though they were both minors when they had sex with each other.
Justice James Makau made note of this when he declared that a 16-year-old boy who had been convicted by a Siaya Court for defiling his 17-year-old girlfriend had suffered discrimination since both parties to the act were minors but only the boy was prosecuted.
He set aside the lower court’s 15-year jail sentence.
All these cases point to the need to amend the Sexual Offences Act to lower the age of consent so that it reflects the realities of the Kenyan society.
At the moment, a child – defined as anyone below the age of 18 – cannot consent to sex, and any sex with such a person is deemed as defilement.
The punishment is anything between 15 years and life imprisonment, depending on the age of the child.
It matters not that the person agreed to the act.
The only exception is where the child deceives the other person into believing that he or she is an adult.
Even then, the adult will be required to show the steps he or she took to ascertain that the companion was of age.
Similar issues arose a few years ago in South Africa where the High Court was asked to determine whether it was constitutional to punish minors for engaging in consensual sex with each other.
AGE OF CONSENT
Both the High Court and the Constitutional Court reached the verdict that it was unconstitutional to punish minors for engaging in consensual sex with each other.
The courts held that such punishment violated minors’ rights to privacy and the liberty to choose what to do with their bodies.
In rendering their decision, the courts wondered why minors were thought to be too young to consent to sex, but were old enough to be thrown into prison for engaging in the act.
Shortly after that decision was made, the South African Parliament moved to lower the age of consent to 14.
It is also time for Kenya to lower the age of consent.
This proposal will definitely elicit strong reactions from various pressure groups such religious groups, gender and child rights activists who are likely to argue that such an amendment will deepen moral decadence among young people and that it will result in increased cases of pregnancies, STIs and early marriages.
However, we need to accept that our teenagers are engaging in sex with each other, and that the best response is not to criminalise such acts.
The best strategy is to promote sex education so that our teenagers understand the risks that come with irresponsible sex and how to avoid such risks.
Mr Ogutu teaches law at The University of Nairobi. The views expressed here are his own. [email protected]