The Children’s Act of 2022 affirms that every child has the right to protection from abuse, neglect, harmful cultural practices, violence, inhuman treatment, and exploitative labour.
I took part in the ‘Blue Umbrella’ campaign, which highlights sexual abuse directed at boys. The event took place three weeks ago, and it got me thinking: How effectively does Kenya’s justice system protect boys from sexual exploitation or abuse, particularly when the perpetrator is a family member? What legal duties do families have to report such cases, and how does the law address situations in which families or communities attempt to resolve matters informally through 'kangaroo courts'? Are there any gaps in ensuring accountability, and what legal pathways exist to safeguard children when cultural or societal pressures discourage formal reporting?
Dear reader,
Although the law is never enough and cannot always be the solution to every problem people face, the children in Kenya enjoy one of the most comprehensive legal frameworks for accessing justice. The Constitution, under Article 27, guarantees equality before the law for all—children and adults alike—without discrimination. This is capped in Clause 4 and 5, which identify sex, age, gender, health condition and nationality, amongst others, as no grounds to create exclusion.
Article 53 (1) and 53 (2) further strengthen this by recognising all children equally, without reference to sex or gender, and emphasising the best interests of the child as the guiding principle in safeguarding against abuse.
The Children’s Act of 2022, an update of the 2001 version, operationalises Article 53. It affirms that every child has the right to protection from abuse, neglect, harmful cultural practices, violence, inhuman treatment, and exploitative labour.
The Act provides definitions of sexual offences detailed under the trajectory of child abuse. This includes sexual offences such as coercion into sexual activity, use of children in pornography or prostitution, exposure to harmful online content, and any act causing physical, emotional, or psychological harm.
The Sexual Offences Act (2006) complements this framework with gender-neutral provisions. It criminalises indecent acts against children, child prostitution and exploitation, incest, and defilement, prescribing mandatory sentences based on the age of the child survivor. The Penal Code reinforces these protections, outlawing sexual harm against children through sections that provide for assault, grievous bodily harm, and particularly outlaws male-to-male sexual activity, irrespective of the degree of the parties' consensualness. The Penal Code decisively affirms the criminality that could emerge from the abuse of Articles 28 (inherent dignity), 29 (personal safety) and 48 on the right to access justice.
Courts protect child survivors as witnesses, and children facing interference in their pursuit of justice are legally categorised as needing care and protection.
The law anticipates challenges where families or communities may shield perpetrators. It also anticipates scenarios where fidelity to culture can be used to circumvent due process. To counter this, it requires all child sexual offences to be reported to the Directorate of Criminal Investigations (DCI).
Such cases cannot be resolved through alternative justice pathways. Courts protect child survivors as witnesses, and children facing interference in their pursuit of justice are legally categorised as needing care and protection. The law also empowers intermediaries to seek court action when injustice is suspected, giving effect to Article 22(3). As for those who prioritise culture that is seen as harmful and condone abuse, their actions are invalidated under Article 2(5).
It is never the interest of this column to take positions since it is designed to educate the public, but on a matter of this magnitude, it becomes necessary to cite a few things that inhibit justice. Persistent gendering of the issue, by insisting that boys must man up, causes serious personality damage and relationship trauma for the survivor.
Silence by families and communities, coupled with stigma against survivors, undermines justice and enables perpetrators. This not only denies them justice, but it also short-circuits the quest for their rights, which seriously and for a lifetime entrenches harm to their physical, psychological, and emotional well-being.
In the matter of Republic versus Lydia Achieng’ Juma (Case No. 4892 of 2010), the court found the accused guilty of committing an indecent act with a child, contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006. She was sentenced to 10 years in prison. On appeal, the High Court upheld the sentence, with Justice Grace Ngenye emphasising the mandatory nature of sentencing under this law.
This ruling illustrates an important principle: once the prosecution proves its case beyond reasonable doubt, the judicial officer must apply the law as written. Neither the sentencing guidelines nor even compelling mitigation by the accused can override the mandatory provisions of the Sexual Offences Act. In such cases, judicial discretion is limited, ensuring consistency and firmness in protecting children from sexual harm.
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