In the past it is clear that many societies – and by no means only in Africa – assume the role of women was to be wives and mothers, and from an early age.
Thus it was also assumed that they were rightly destined to engage in sexual intercourse from an early age. Women were the legitimate and passive object of men’s desires, as well as the bearer of their children.
Kenya has tried to make a radical change from this, including by banning child marriage and imposing extremely tough penalties for any sexual intercourse with under-age girls.
And under-age now means 18 rather than 16, or even less. But one side-effect of the new law has been a large number of young men imprisoned for having sex with their girlfriends, and necessarily sentenced to a minimum of 15 years, if the girl was between 16 and 18.
But the girl still seems to be assumed to be the oppressed subject of men’s desires, with no ability to take her own decisions or to resist unreasonable demands.
Kenyan law – like many other systems – tends to assume that all sexual relations with girls under 18 is a matter of exploitation and abuse.
There have been recent cases in both Kenya and Zimbabwe touching on aspects of this.
The Kenyan case, in May, was not necessarily about the age of either party – the man or woman. But issues of age were obviously present in the Judge’s mind.
Justice George Odunga had to decide whether the law that said a certain minimum sentence must be imposed for sexual offences against young people were constitutional.
He said they were not. And his reason was essentially a Supreme Court case which decided it was unconstitutional for the law to require murder to be punished with the death penalty – giving no choice to the courts.
Just as in that case (Muruatetu) he said that the issues of sentencing was something that should be left to the courts (within broad limits that can be set by a maximum sentences – the usual approach).
He also held that to deny the accused person the benefit of the judge’s consideration of the appropriate sentence for the person and the crime was a violation of Article 28 on human dignity.
What does this have to do with the age of the victim – and the accused person? The judge referred to previous court decisions that expressed concern about young people being locked up for long periods for having sexual relations with their willing girlfriend as an example of why the power of the courts to make decisions about sentences was important.
It was not the judge’s job to decide on some cut-off point at which certain sentences must not be imposed.
He quoted himself in an earlier case saying, “The effect of the harsh minimum sentences imposed under the said Act on young people in this country is a serious cause of concern. Our jails are overflowing with young people convicted courtesy of the provisions of the said Act. While I appreciate that sexual offences do demean the victims of such crimes and ought not to be taken lightly, the general society in which we operate ought to be taken into account in order to achieve the objectives of punishment. Penal provisions ought to take into account the objectives intended to be achieved and should not just be an end in themselves.”
The Supreme Court has told us that Muruatetu does not automatically apply to other cases – like minimum sentences for sexual offences.
The court was inviting cases like this to come up before it. This is a case – or at least an issue – that should go to the Supreme Court for clarification.
Some people have been unhappy about the decision, because they see it as putting young women at risk of sexual abuse.
One problem about the decision is that it does not prevent young people being prosecuted, and convicted, for having sex with a willing young woman if she is under 18.
I am a little concerned that some may want to use this recent case before a three-judge bench in Zimbabwe – on whether it was constitutional or not to make it necessarily a criminal offence to have sex with a girl under 16 – as a precedent in Kenya.
It might be used to argue that to change our Sexual Offences Act – as some people have suggested- – to make it not automatically an offence for a young man not much older than the girl to have sexual intercourse with her would be unconstitutional.
The court rejected the work of the lower court in looking at international practice and other facts. All that mattered, it said, was whether the law is compatible with the Constitution when it says sexual intercourse with a person under 16 is automatically a crime but this is not true of sex with an older person including those between 16 and 18.
The relevant words of the Constitution of Zimbabwe are that every child, which means hose under 18, has the right “to be protected from economic and sexual exploitation, from child labour, and from maltreatment, neglect or any form of abuse.”
The court took the view that any sexual activity with a child under 18 would be sexual exploitation. It agreed that “young persons lack understanding of sexual behaviour, the context of normal sexual relationships, and knowledge of the consequences of sexual relations”.
The court said there would be exploitation because the guilty person would be taking advantage of the child’s consent.
This attitude is similar to that of people objecting to the Kenyan case, and is assuming that any case of sexual relations between a girl (for we are not talking of gay relationships here) is one of abuse by a man of a woman.
The Kenyan Constitution is a bit different in wording, if not in spirit. It say that every child has the right to be protected from “to be protected from abuse, neglect, harmful cultural practices, all forms of violence, inhuman treatment and punishment, and hazardous or exploitative labour.”
Anyone who takes a view similar to that of the Zimbabwe court might say that any sex involving s young girl was abuse. I would argue that not every act of sexual intercourse with a girl under 18 is abuse. A young man who has sex with a willing girlfriend is not abusing her.
WHERE SHOULD WE GO?
Navigating the issues of sexual relationships is no easy matter for young people today. They are pushed to engage in sexual activities by peer pressure and media. It is wrong, I would suggest, to view the girl always as the victim. Both need to take responsibility. But until we accept sex education – which means relationship education not just sex – we have little hope of teaching them anything different.
We cling to the idea that the age of marriage and the age of consent must be the same. But it is very common for people to have sexual relations before marriage. We may regret it – but it is reality.
I suggest that the Zimbabwe case suggests that the courts are not the best way to handle complex issues of this sort.
In an article in 2017 I commented that there are solutions in various countries. Some make the law less strict if the couple in question are close in age. It is of course perfectly possible for a young man to abuse young women – this is not the preserve of the older man.
The law as it is does not allow the complexities of life to be taken into account. I at least would hope that the Supreme Court – if the case gets there – would uphold Justice Odunga’s decision.
We need a considered review of the law. And hope that MPs would pass a rational approach.
This article was first published by the Star Newspaper https://www.the-star.co.ke/siasa/2022-06-12-ghai-sex-the-young-and-law-resolving-romeo-and-juliet-problem/