Judges have for long been calling for a review of the sexual offences law in a bid to have clauses on minimum sentences changed.
Defilement — sex with a child under the age of 18 — is a crime under the Act.
The law has mainly seen minors and young adults end up in jail, for engaging in sex with their age mates.
Defilement of a child aged 11 and below carries a life imprisonment sentence; 12 to 15 years, a 20-year jail term; while one would be liable for a 15-year sentence for having sex with children aged between 16 and 18.
Judicial officers have in different forums said they are not fully exercising their discretion in determining sexual offences before them, argue that each case ought to be determined on its own merit and the circumstances relating to it.
However, recent developments in courts appear to have addressed the concerns while Parliament and the Attorney General are still dilly-dallying.
The courts are borrowing heavily from a verdict by a full bench of the Supreme Court on December 14, 2017, which declared mandatory death sentence to be unconstitutional as it had restricted judges to only one sentence — death.
Court of Appeal judge Martha Koome, who is also the chairperson of the National Council on the Administration of Justice (NCAJ) special task force on children’s matters, says with the Supreme Court verdict, judges have been able to apply their mind in a case-by-case basis as opposed to instances where minors are jailed for long irrespective of circumstances.
The age of consent in Kenya is 18 and any minors found having a hanky-panky will have committed an offence punishable under the Sexual Offences Act.
“What has helped us is the Supreme Court ruling on mandatory death sentence. Sentencing, like the superior court had observed, is a judicial function and the law should not decide for the court. That judgment has been used when we get such kinds of cases,” Justice Koome said.
She is, however, opposed to calls to have the age of consent lowered from 18, saying it may lead to other unforeseen challenges, including early marriages. “Whatever age of consent that we will have, there is the possibility of marriage. These are the real issues that we have not thought of and found answers to. The next thing after sex is marriage,” Justice Koome said.
The NCAJ was formed in 2016 and did research in Nyandarua, Kisumu, Kilifi, Nairobi, Makueni, Narok, Bungoma and Garissa counties.
In their 2019 report, the task force says an analysis of police records reveals that the bulk of pending cases in Kenyan courts relating to children’s matters between 2016 and 2018 are sexual offences, which account for 69.48 per cent of all pending cases involving children in the eight counties sampled.
Most of the cases reported to the police are “Romeo and Juliet” types. Common in this category are cases in which both the complainant and the accused are below the age of 18.
Romeo and Juliet cases refer to non-violent sexual relationships between two minors or one minor and an adult, where the age difference the two is three years or less.
“Thanks to the Supreme Court judgment, instead of sentencing Romeo and Juliet, we can now refer such child offenders to probation, rehabilitation or reducing their sentences, depending on circumstance of each case,” Justice Koome said.
The Center for Reproductive Rights — a global legal advocacy organisation that fights to ensure reproductive rights are guaranteed in law as fundamental human rights — has produced a publication titled ‘Criminalising Adolescence: A Call to Reform the Sexual Offences Act’.
The report investigates the realities behind the criminalisation of non-coercive and non-exploitative consensual sex among adolescents and explores how legal frameworks often reflect a punitive rather than evidence-based approach to exercising rights.
High Court judge Robert Limo ruled in July that going by the Supreme Court verdict, if courts were to continue being bound by prescriptive nature of minimum sentences, including those prescribed by the Sexual Offences Act, then mitigation would be rendered superfluous because at the end of the day, it wouldn’t matter if a convicted person spends a whole hour giving mitigating circumstances or just 30 seconds to simply pray for leniency.
“This court takes the view that the emerging jurisprudence that flows from the Supreme Court case is that a provision in a statute that prescribes a mandatory sentence, whether it is a death sentence or a minimum sentence, is unconstitutional for depriving a trial court the exercise of its judicial discretion in handing out an appropriate sentence,” the judge said in the July 17 ruling where a convict was appealing against a sentence he was handed under the Sexual Offences Act.
Court of Appeal judges Daniel Musinga, Kathurima M'Inoti and Agnes Murgor, also observed in their December 7, 2018 judgment on an appeal before them that the appellant was sentenced to life in jail on the basis of the mandatory sentence stipulated by section 8 (1) of the Sexual Offences Act, and if the reasoning in the Supreme Court case was applied to this provision, it too should be considered unconstitutional.
In the two cases, the judges set aside sentences the Sexual Offences Act imposed, substituting them with lesser ones.
Court of Appeal judges Roselyn Nambuye, Daniel Musinga, and Patrick Kiage noted in March, this year: “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.”
The judges said the Sexual Offences Act needs serious re-examination in a sober and pragmatic manner.
“Many other jurisdictions criminalise only sexual conduct with children of a younger age than 16 years. We think it is rather unrealistic to assume that teenagers and maturing adults do not engage in, and often seek sexual activity with their eyes fully open,” the appellate judges said in the March 22, 2019 judgment.
In an attempt to tackle the problem of young people getting exposed to sex early, some countries have significantly lowered the marriageable age to reduce conflict with the law.
In South Africa, Denmark, Slovenia, Ukraine and Estonia, the marriageable age for a girl is 15 years, while Spain, Austria, Belgium, Bulgaria, Switzerland, Czech Republic, Germany, United Kingdom and Hungary, a girl or boy can get married at 16, all subject to parental consent.
