Age of Sexual Consent Jurisprudence in Kenya: A Case of the two-faced Janus?
Access to Justice / Advocacy StatementsApril 25, 20190 CommentsKituo Cha Sheria
Is it just for a seventeen-year-old to go to prison for having sex with a fifteen-year-old with supposed consent?
While it may be easy to prescribe for this, I guess it is also prudent for the law to protect students from manipulation and sexual exploitation frominter alia their teachers. This situation epitomizes Lord Denning (MR) assertion that while parliament creates in abstract, judges develop jurisprudence from context. The Court of Appeal Judges in the case of Eliud Waweru Wambui v Republic  e KLR had to deal with a conundrum of blanket legislation hence suggesting that lowering the age of sexual consent to sixteen years may be the cure. The Judgement -in part- states that our 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.
This has however excited the Kenyan psyche attracting both praise and condemnation alike hence the question where should we face? In this article, the author;
- discusses sexual consent within the legal and social parameters;
- discusses legislations that regulate age of sexual consent in Kenya through different prisms;
- discusses the merits and perhaps demerits of lowering the age of sexual consent in Kenya; and;
- lastly, he discusses a way forward or lack of it thereof.
Age of Sexual Consent in Context
The age of sexual intercourse consent refers to the age at which a country’s law determines when a person can lawfully engage in sex. This is important as engaging in sexual intercourse does not just come with responsibilities but rather it characterizes a society and brings out its values. The Black Law’s Dictionary defines consent as an approval, agreement or permission as to some act given voluntarily by a competent person. Consent may be given both expressly or implied hence making it a human rights issue. This discussion illuminates two competing ideas that of autonomy on one side and protecting the greatest number of vulnerable people (Utilitarian theory).
There are many countries around the world with no specific age of sexual consent due to diversity however the countries that have this describe it in the negative- that is it is offensive or unlawful to have sexual intercourse with a person belonging to a specific age. As much as most of these countries cling to the age of 16, there are those some who go as low as 12 years.
In Kenya, the age of sexual consent is set at the age of 18 years. This means that anybody below this age cannot materially give consent to sex. While there may be no consensus on this, 18 years may have been arrived at for the fact that it is the age of majority hence autonomy. This parameter is however presently facing a challenge as the practicality of adolescent sexual escapades betrays the law.
What is the law of the age of sexual consent in Kenya?
The Law of Age of Sexual Consent in Kenya
In Kenya, the age of sexual intercourse consent is governed by the Sexual Offences Act 2006, the Penal code and the Evidence Act. The Sexual Offences Act insists that for a person to give consent for sexual activity, they must have agreed by choice and have freedom and “capacity to make a choice.” There are two issues that the Sexual Offences Act insists on when it comes to consent in sexual activity, thus free will and autonomy. The law requires that one has to make a deliberate decision to want to have sex be it express or implied. Capacity on the other hand, implies age (Age of Majority) and the mental ability.
The Evidence Act deals with the circumstances where one can be deemed to have given consent and those that have not. The issue of age is an important matter especially where there is presumption of consent. The Penal Code on the other hand states the presumption of law that a person under the age of 12 is not capable of canal knowledge.
Customary law which is a significant part of the laws of Kenya in accordance with the Constitution of Kenya (2010) is silent on matters of age of sexual consent. As an African society, most communities advocate for sex as a preserve of marriage however, the age of marriage is one that is left in abeyance. While consent may be a requirement for customary marriage, many times age is not a factor.
International law through the Convention on the Rights of a Child (CRC) does not set an age for sexual consent. There is no consensus on the age of sexual consent as much as most countries set it at 16. The CRC Committee has stated that countries that have ratified the instrument need to have clear laws on the age of sexual consent. It also recommend the same age for both male and female. The CRC committee further notes that, while setting age of sexual consent, maturity and evolving capacity are factors to consider.
Lowering the Age of Sexual Consent in Kenya
Away from the law that stipulate the age of sexual consent at 18, the society seems to have betrayed the law. Statistics from the United Nations Population Fund (UNFPA) indicate that 28,000, adolescent girls between the ages of 10 to 14 years got pregnant in 2016. This is due to a number of reasons including peer pressur, poverty and lifestyle choices.
Evolving capacities as stated in international law is another factor that Kenya may have to consider. There is an argument that girls and boys today mature faster. They get exposed to sexual activity much earlier and it is therefore foolish for the society to remain static. These changes and the sexually energized Kenyan society today has been attributed to a number of factors including social media-perhaps a story for another day!
Reproductive health and access to reproductive health services is perhaps another reason to consider lowering the age of sexual consent. There are issues on the use of contraceptives that are aligned with the subject matter. Proponents of this argument look at issues such as HIV/AIDS infection rates and insist on the need for comprehensive reproductive healthcare.
As stated in the Eliud Waweru Wambui v Republic  case; there is a feeling that there are many victims of blanket legislation in prison. Men who technically got consent but girls didn’t have capacity. Courts in Kenya have been dealing with this for a long time and maybe there is wisdom as much as it may not be perfect.
Those opposed to this move state reasons including morality, ethics and religion. They also state that the laws that do not give capacity to sixteen-year-olds protect them from exploitation. They assert that while not water proof, these laws have a deterrent effect that protects the society.
Like the mythical Greek god-Janus, this case has put Kenya at a cross roads. The Court of Appeal case has stirred a national conversation that perhaps has illuminated the issue. As much as the argument against the recommendation of these judges is understandable, perhaps their wisdom is unmatched. The world keeps evolving; as so; is the society and therefore the law also needs to keep changing. The age of sexual consent for Kenya should therefore be set at 16 years…but I may be wrong.
Ouma Kizito Ajuong
LLB Hons, KUSOL, Dip. Law, (KSL)
Advocate of the High Court of Kenya
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