Sometimes the criminal law can seem quite remote from the realities of life. We know that in some Kenyan communities many young people “marry” before they reach adulthood. (I say “marry” because if either party is under 18, the marriage is not valid.)

Technically in every one of those cases (unless the couple are celibate) an offence is committed every time they have sex – until the two are 18. The last Judiciary annual report also tells us that many “minors” are prosecuted for the offence of defilement – meaning sex with another minor.

Of course there are good reasons for hoping that children will not engage in sex. The  judge in a recent case (HSO, AMO, TA) commented “Sexual conduct comes with many physical, emotional, healthcare, reproductive and I dare say perhaps even spiritual effects that have long-term and even lifelong consequences on who we become and how we relate with others.” For girls the consequences may be particularly serious: pregnancy and childbirth with a body that is not ready for it, with risks such as fistula; interference with education; having to look after a baby when one is still a child oneself.

For some people it is a moral or even religious matter. Sex out of marriage is wrong they would say.  And you can’t marry in Kenya before the age of 18.

To go from these facts or beliefs to imagining that the criminal law can achieve a radical change in youth behaviour – in a society where, like many others, there is reluctance to talk about sex, where sex education is minimal and where the surrounding society often encourages sexual fascination, even obsession –  is to live in cloud-cuckoo land.

One issue was described by the Court of Appeal (Wambui case) “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.”

Sometimes the young men are themselves under 18 in which case they cannot under the Children Act be sent to prison. They can still be prosecuted and could be remitted to some sort of detention.

Devising law that will protect girls from unwanted sexual activity while recognising that young people will experiment is very difficult. Some rigid rules may be necessary – but inevitably lead to some cases of injustice.

In 2006 (the Sexual Offences Act) Parliament decided that girls (it is assumed the issue of consent is about the girl) are not really able to make a decision about having sex until they are 18. On their 18th birthday they suddenly become able to do so. Until 2006 the age at which consent was possible was 16. In the Act idea that below 18 one cannot consent is not limited to girls – to have sex with a boy under 18 is automatically an offence.

The courts

The issue has come to the courts several times. In 2014 the High Court rejected the argument that age discrimination was involved – because “the law is geared towards the protection of the child”. In one case a judge did decide that to prosecute only the boy but not the girl was discriminatory (though of course this would just extend the impact of an unjust law).

In the Wambui case, the Court of Appeal clearly felt that reducing the age of consent to 16 was probably best – but were able to let the boy off completely in that case because he had been was wrongly convicted.

The other problem about the Sexual Offences Act is that there is a fixed minimum sentence for anyone found guilty. The Court of Appeal and High Court have considered that unconstitutional. This would have meant than in one of these teenage consensual sex cases a court, even if it could not avoid convicting, could have given a very low sentence or even discharged the offender completely.

However, when this line of argument reached the Supreme Court (Mwangi case) they refused to decide the point, and yet indicated that – though it had held a compulsory death sentence was unconstitutional – they would not apply the same reasoning to minimum sentence rules that do give the courts some room for manoeuvre. The court’s reasoning is weak (and perhaps influenced by the involvement of Justice Njoki Ndung’u whose “baby” as an MP the Sexual Offences Act was).

A recent case

A recent decision by Justice Mwamuye has attracted a lot of attention (HSO, AMO, TA). The case involved young couples where both girl and boy were under 18 and the boy was being prosecuted. The judge’s conclusion was that those cases must be terminated, and that in future the police and the Office of the Director of Public Prosecutions should not prosecute “consensual, non-coercive and non-exploitative close-in-age adolescent conduct”.

The judge was able to say that to prosecute these cases goes against Articles 27 )on equality and discrimination), 28 (on human dignity –including of children), 31 (on privacy), 43 (on socioeconomic rights like health and education) and 53 (on the rights of the child).

In addition the ODPP must formulate clear guidelines on when prosecution is to take place, including on this situation. And “The relevant state organs responsible for health, education and child protection” must develop policy and measures to ensure adolescents can access sexual and reproductive health information and services “without fear of criminalisation”.

This is commendable. However, will it make any difference except to the particular parties? Court are constantly ordering public agencies to do things – and no notice is taken.

This judgment leaves the law unchanged – but it is not to be used in some circumstances. If a case does come to court, must the prosecution prove the conduct was not consensual? Or the defence prove it was? Must the issue of “adolescence” be proved? If nobody raises the issue will the case just proceed according to the rigidities of the Sexual Offences Act? Does it apply to just 16 to 18-year-olds (sentence at least 15 years), or also 12 to15-year-olds (minimum 20 years)?

The problems of courts deciding such issues which are, as people say, “multi-faceted” – with many aspects, are clear. A suitable resolution to the whole situation would involve some sort of inquiry, involving people who understand the real issues, not dominated by the elderly and the religious-minded, while not of course excluding them. The complexities were well brought out in a report on consultations by the National Gender and Equality Commission in 2019.

Courts have repeatedly urged or even tried to order government and Parliament to tackle the issue. The Supreme Court wanted to leave it to them.  Is there any chance that government and Parliament will do anything about it? Especially in an election period (though which period is not?) they have other priorities.

At one level the cases reinforce the value of public interest litigation – and of the constitution. And it tempts me to reuse one of my favourite quotations from an Indian Supreme Court judge, Chinnappa Reddy, and apply it to Kenya: “It is not the Judiciary, but the Parliament and the Executive that have failed the people.”

But they also show the limitations. Judges cannot hold a law invalid just because it is unwise – they must be convinced that is unconstitutional. Our constitution, by recognising a wide range of rights, does make possible more holdings of unconstitutionality than many constitutions.

However, in a country where court orders are not taken seriously, we can probably expect more cases coming to the courts. And maybe more precise rulings.

This article was first published by The Star Newspaper.

Image: FILE