Three Court of Appeal judges have proposed a law change into the country's age of consent seeking to lower it from 18 to 16 years.
Judges Roselyn Nambuye, Daniel Musinga and Patrick Kiage, ruled that it is time for the country to change the Sexual Offences Act, saying that lengthy sentences have been given to young men found guilty of defilement.
One of their observations was a case where they reversed a 15-year sentence that had been given to a young man who impregnated a 17-year-old girl.
The judges believe that the country should discuss challenges of maturing children, morality, autonomy, protection of children and the need for proportionality in punishing sex offenders.
They argued that many men are currently behind bars for sleeping with teenagers who “were willing to be and appeared to be adults”. Adding that a debate on lowering the age of sexual consent was “long overdue”. “Our prisons are teeming with young men serving lengthy sentences for having had sexual intercourse with adolescent girls whose consent had been held to be immaterial because they were under 18 years. It is unrealistic to assume that teenagers and maturing adults do not engage in sexual activities, ” ruled the Judges.
According to them, underage boys and girls often engage in sexual relations willfully. “They may not have attained the age of maturity but they may have well reached the age of discretion and are able to make intelligent and informed decision about their lives and their bodies. That is the mystery of growing up, which is a process and is not a series of disjointed leaps. We need to add as we dispose of this appeal that the Act does not cry out for a serious re-examination in a sober and pragmatic manner, ” said the Judges.
In the case the Judges observed, Eliud Waweru was thrown behind bars after he impregnated a girl who had just completed her secondary school education.
Waweru and the girl's father had agreed on Ksh. 80,000 as dowry payment in the presence of the area Chief after the girl had eloped with her lover only for him to be arrested and charged after he failed to pay the money.
They say that in this case, the courts were called in to “enforce with mindless zeal that which offends all notions of rationality and proportionality”. “This appeal epitomizes for umpteenth time the unfair consequences that are inherent in a critical enforcement of the Sexual Offences Act No. 3 of 2006 and the unquestioning imposition of some of its penal provisions which could easily lead to a statue-backed purveyance of harm, prejudice and injustice, quite apart from the noble intentions of the legislation,” ruled the court.
The judges observed that the girl was forced into fixing the man by her parents, something she had documented in two letters where she threatened to commit suicide. “The question that arises is whether it is lawful for a girl who is already over 18 years and is a mother, and who had chosen not to testify against the father of her child, whom she considers to be her husband, ti be locked up to force her to testify. Waweru is like Shakespeare's King Lear, a man sinned against than sinning,” finished off the judges.
Waweru was released this Friday after spending close to eight years in prison.
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