Kenya has developed many legal and policy guidelines for the protection of children from sexual violence and harm. For example, the Sexual Offences Act, No. 3 of 2006, indicates the minimum age of consent for sex as 18 years, and this implies that anyone under the age of 18 cannot consent to sexual acts or marriage. This article delves into the intricacies of the age of consent in Kenya, examining the legal framework, ongoing debates, and the socio-cultural factors that influence this critical issue.
Legal Framework and Child Protection
Conventionally, a child is anyone who has not attained the age of 18 years according to the United Nations Convention on the Rights of the Child. Kenya is a signatory to this convention, and its laws reflect this commitment to protecting minors. The Sexual Offences Act does not make exemptions for any child found guilty of sexual offences. Children are punished as adults, and remanded in custody with adults.
The Children’s Act, however, states that minors - those under the age of 18 - are to be tried in a children’s court, unless charged with a capital offence, such as murder. When a child is found guilty in a children’s court, they should be, among other measures, put under the care of a “fit person, whether a relative or not, or a charitable children’s institution willing to undertake his care”, rather than be sent to jail.
Under the Sexual Offences Act, being convicted of having sex with a person under 18 leads to a sentence of at least 15 years (more if the child was under 16).
The Debate on Lowering the Age of Consent
Kenya’s judges and child welfare organisations are embroiled in a fresh debate on whether to lower the age of consent. Some members of the judiciary believe the age of consent should be lowered from 18 to 16 for heterosexual acts (gay sex is criminalised at any age, punishable by up to 14 years in prison) because boys and girls have “reached the age of discretion and are able to make intelligent and informed decisions about their lives and their bodies”.
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Proponents say lowering the age of consent will reduce the number of teenage boys convicted and jailed for “defilement” (the abuse of a child in Kenyan law) after having consensual sex with a girl. They are concerned that aspects of the country’s Sexual Offences Act conflict with the Children’s Act, and disproportionately punish teenage boys.
Justice Said Chitembwe recently said the practicality of the law had to be reviewed. During his interview for the post of chief justice earlier this month, Chitembwe said that, while the law found anyone who “defiled” a person under 18 guilty, the practicality of implementing the legislation needed to be reviewed.
Debate on the issue of consent has been ongoing since a controversial ruling in 2016, when Justice Said Chitembwe, who was recently considered for the post of Kenya’s chief justice, freed a 24-year-old man who had been jailed for the statutory rape of a 13-year-old girl. The ruling received international condemnation, with the Women’s Link Worldwide awarding it the 2017 Gold Bludgeon award because it set a “dangerous precedent assuming that girls who consent to sex before age 18 should not be afforded special protection”.
But a national debate on lowering the age of consent to 16 was sparked two years ago, after three judges of the appellate court reversed a 15-year sentence on a man, who was over 18, accused of the statutory rape of a 17-year-old girl.
Public forums and discussions followed, but a final report, Minimum Age of Consent for Sex: Addressing the Dilemma, recommended that the age of consent remain at 18, adding that any reduction could negate gains made by the country on gender equality.
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However, the debate has been reopened in past weeks by the high court judge Luka Kimaru. During public hearings by the Power of Mercy Advisory Committee, which is currently reviewing some of the country’s laws, Justice Kimaru said: “Challenges arise when teenagers experiment, when they try to discover their sexuality. Some of them go overboard, and that is why we have these teen pregnancies. Most of these relationships are more or less consensual.
“A teenage boy and a teenage girl have sex - you can call it consensual - it is the boy who is punished and the girl who is not. And yet they did it together consensually.
“The law does not consider a girl or a boy who is under 18 to have the capacity to give consent. But the social reality is that these things are happening. When this is criminalised, it creates another injustice. The aspect of the offender being a minor is often forgotten.”
Arguments For and Against Lowering the Age of Consent
Arguments in favor of lowering the age of consent often highlight the potential for injustice when young people engage in consensual relationships. It is deeply sad that many girls are dropping out of school because they are pregnant. That girls in their teens are suffering from sexual violence. What do we do to prevent it?
The law could say that a man who has sex with a girl of that age commits a criminal offence unless he can prove that she consented. Alternatively it could be treated like rape of a person over 18: it is a crime if it can be proved that the girl did not consent or her apparent “consent” was forced.
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FIDA says it actually proposed a “Romeo and Juliet law”. Such a law (found in Canada and many US states, and South Africa) means that if the couple was young (so no dirty old men) the age of consent is lowered. For example, even a girl of 12-13 could consent to sex with a boy only 1 or 2 years older.
Arguments against lowering the age of consent emphasize the need to protect vulnerable minors from exploitation and the potential negative consequences of early sexual activity. Some clearly have such a vision including the brave ones who refuse FGM against their parents’ wishes. We tell them that “We can’t guarantee you a place in secondary school so you have to leave at 15. You can work for a living (and of course pay taxes if you earn enough).
The Christian right and its political allies have similarly co-opted efforts to crack down on child pornography as part of their drive to suppress teenage sexuality. Child pornography statutes, which were initially designed to prevent predators from exploiting children, are now increasingly being used to prosecute or intimidate teenagers who receive sexually explicit photos of their boyfriends or girlfriends. The problem is not with these teenagers. The problem is with the statutes.
Joyce Mutinda, who chairs the National Gender and Equality Commission, said people under the age of 18 are incapable of making comprehensive decisions and judgments about their sexuality: “Children under 18 are not adequately developed socially, mentally and psychologically to consent to sex. Earlier sexual debut exposes children to physical and psychological effects.”
Key Considerations:
- The need to protect children from exploitation.
- The recognition of teenage sexuality and consensual relationships.
- The potential for injustice in the current legal framework.
Even more important, our society needs an open debate on this question. For far too long, those progressive voices who would bring common sense to the issues of teenage sexuality have been afraid to speak out for fear of being branded sympathetic to pedophiles and sex predators. The reality is that a reasonably lower age of consent, and a frank national discussion of adolescent sexuality, would serve the interests of the very minors that current laws are supposedly trying to protect.
Global Perspective on Age of Consent
Around the world, the age at which a person can legally consent to sexual activity varies widely. In most countries, the age of consent is between 16 and 18 but there are outliers.
Different countries have reduced the age of consent. For instance, Great Britain, after considerable national debate, chose 16 at its magic number in 2003, although a minority of liberal Britons, led by gay rights activist Peter Tatchell, continue to push for a cut-off at 14 years. In 2008, Canada has also settled upon 16. French law sets the age of majority, in matters of romance, at 15. Other countries like Belgium (16), Denmark (15), Germany (14-16), Greece (15), Holland (16), Italy (14), Norway (16) and Sweden (15). Similarly, different African countries have lowered the age of consent. Nigeria at 11 is lowest, while countries like Ghana (16), Zambia (16), Zimbabwe (16), Comoros (13), Burkina Faso (13) Alegria (16), Guinea Bissau (16), and South Africa (16) have a lowered the age of consent. In fact, out of 54 African countries, only 23 have 18 years as age of consent.
Here is a summary of the age of consent in various regions:
Age of Consent Around the World: A Global Perspective
| Region | Common Age of Consent | Examples |
|---|---|---|
| Europe | 15-16 | Great Britain (16), Belgium (16), Denmark (15), Germany (14-16), Greece (15), Holland (16), Italy (14), Norway (16) and Sweden (15) |
| North America | 16-18 (varies by state) | Canada (16), United States (varies by state) |
| Africa | Varies widely, some as low as 11 | Nigeria (11), Ghana (16), Zambia (16), Zimbabwe (16), Comoros (13), Burkina Faso (13) Alegria (16), Guinea Bissau (16), and South Africa (16) |
| Asia | Varies, often influenced by cultural and religious norms | China (14), Japan (16), South Korea (16) |
| South America | 14-18 | Ecuador (14), Brazil (14), Chile (18), Bolivia (18), Argentina (18) |
Child Marriage and Cultural Norms
Despite advocacy for legal changes and awareness campaigns by the government and different stakeholders, child marriage is still a persistent issue in Kenya. This child-rights violation that happens in many parts of the world affects both boys and girls, but the effects are more compounded in girls. The law generally describes child marriage as any form of forced marriage if one or both parties have not expressed full, free, and informed consent.
According to research carried out by UNICEF, the national prevalence of child marriage is recorded at about 23%. Regionally, child marriage prevalence according to the Kenya Demographic Health Survey (2014) is reported as North Eastern (56%) having the highest rate, followed by Coast region (41%), Nyanza (32%), Rift Valley (30%), Western (27%), Eastern (18%), Central (17%), and Nairobi (7%). The root causes of child marriage in different ethnic groups are majorly poverty and cultural norms.
The hazards of children being married off are many, and child brides are less likely to continue with their education and this has slowed down their pace of developing skills, acquiring knowledge, and their confidence in making informed decisions. Girls most often undergo diverse health effects during childbirth because their bodies are not ready to bear children. They are also at a higher risk of experiencing domestic violence because of the aspect of male chauvinism in most ethnic groups.
If different stakeholders at different levels cooperate and show commitment in this fight then as a country we shall achieve a great transformation including communities with higher rates of educated young people. The government needs to collaborate with stakeholders and child-serving organizations to enforce laws including the Children’s Act of 2012, and the Marriage Act of 2014 to protect children against child marriage.
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