It was a sigh of relief when MPs thwarted the ill-informed, scandalous,
attempt to ammend the Sexual Offences Act to reduce the age of consent from 18
to 16. That the contentious ammendment with very grave implications was
‘hidden’ in the Statute Law (Miscellaneous Ammendment) Bill 2016 and made it to
the floor of the house amid loud contestations is an indictment on its
proponents and movers and belies their real motivation.
Lest we forget, the Sexual Offences Act was a product of a long
protracted struggle marked by many false starts, disappointments, half-hearted
compromises, gains, losses…
Agitation for a specific sexual offences legal framework started in
earnest in the 1990s, by women and child rights organizations. It was prompted
by endemic sexual violence particularly against women and girls amid a weak inadequate
legal framework and the need for reform in line with international standards.
Public protests, petitions, public interest litigation and networking culminated
to the initial Sexual Offences Bill which was drafted in 2004 by the Juvenile
Justice Network, comprised of 16 women and child rights NGOs. The Bill sought
to consolidate laws relating to sexual offences, to amend or repeal existing
laws, to bridge legal loopholes and to provide new laws for ‘new’ sexual
offences. The Bill was presented to the then AG, Amos Wako on 15th
September 2004 for tabling in Parliament as a government bill. It was never to
be, despite the AG’s recognition and expression of need for the Bill and vigorous
and unrelenting advocacy and lobbying efforts.
The Juvenile Justice Network then teamed up with nominated MP, Hon.
Njoki Ndung’u, who introduced the Sexual Offences Bill in Parliament in
December 2004 as a private members motion. Despite misgivings from a section of
male MPs about some envisaged provisions, the motion was passed in April 2005.
A revised version of the Bill was published in August 2005, but it was time
barred when Parliament was prorogued for the constitution referendum. The Bill
was republished in January 2006 then withdrawn prior to debate in Parliament to
allow for consensus and attendant revisions. The ammended Bill was published in
March 2006. It went through a highly polarizing debate but was eventually
passed with amendments in July 2006. The Sexual Offences Act came into force on
21st July 2006.
Unambiguous definition of consent age, subsequent criminalization of
sexual activity below 18 years, gender neutrality and minimum sentences were
some of the hallmark gains of the Sexual Offences Act. As an informed and active
participant in this struggle, I was scandalized by the bid to roll back the
gains in the fight for rights and safety of children, both girls and boys. Am
still lost and yet to come to terms with what the push to lower the age of
consent from 18 to 16 sought to cure and what is so urgent about 2 years that
would justify making such a drastic change in a law that we fought so hard for.
Some quarters chose to confuse with useless legal jargon, making
reference to ‘age of consensual defilement’ to push the agenda for reduced consent
age. Seriously!???Defilement means one person is too young to legally consent
to sex, it can only be an antithesis of consensual sex. I care less that there
are jurisdictions that have set the consent bar as low as 13years. Our lived reality
is definitely worlds apart. Whatever the case may be, what capacity does a 16
year old have to appreciate and effectively manage the biological,
physiological, social and economic consequences of their ‘choice’ to have sex? With
the ammmendment as was, how would we have ensured protection of 16 year old
girls from 45-year old sex predators, or from being trapped in early marriages
following consensual abuse? It is outright irreconcilable that we can entrust
16 year old boys and girls with such potentially life-changing decisions yet we
cannot entrust them with the responsibility and rational decisions that comes
with a national ID, a Driving Licence or a voter’s card.
Some arguments rightfully cited existence of consensual sex among
minors. It was said that ‘many younger children are engaging in sex’… that ‘it
is wrong to prosecute teenage boys for having sex with their girlfriends’…that
it is more of a moral than a legal issue…that it is foolhardy to legislate morality. It was further claimed that
‘too many boys are in prison for sexual crimes’…..with the actual facts rarely featuring
in the ‘legally informed and well thought out analyses’ beyond citing ‘Romeo
and Juliet’ laws in other jurisdictions. While consensual sex by minors is a
reality that we may have to live and deal with, it must never be allowed to be
synonym or directly proportional to defilement or rape. Challenges with addressing
morality issues and prosecuting sexual offences by teenagers must never be used
as a justification to make such a drastic change in the law.
The ammendment ostensibly sought to protect against unjustified victimization
of teenage boys. Narratives were told of parents taking advantage of the Sexual
Offences Act to have their young daughter’s boyfriends jailed for defilement or
rape. While this is not far-fetched, once again the actual figures to
demonstrating the scope and magnitude of the problem were missing in action.
Given the probable circumstances, the need to protect the boy child and/or deal
with conniving parents cannot be over emphasized. However, it must never be at
the at the expense of the girl child!
The Sexual Offences Act was relentlessly labelled punitive to young men
and minors, with seeming calls for different treatment of sexual offences on
account of age of perpetrator. How different is an 18 year old sexual offences offender
from an 18 year old robbery with violence or murder offender? Is the latter
treated any different because they are 18 and their victim is 17? Why should it
be different for sexual offences? The pro-ammendment arguments ‘conveniently’
avoided highlighting that the Law as is provides for convicts that are minors
to be sent to borstal institutions for a maximum of three years. The gender
dimension, where victims and perpetrators of sexual offences are largely female
and male respectively, was also largely ignored. The bottom line is that sexual
offences are crimes like any other crimes in our statutes, an 18 year old is an
adult and three years in a borstal institution is no comparison to the lifetime
trauma that survivors of sexual offences often have to live with.
Its good riddance to the attempts to make it legal for 16 year olds to
engage in sex!
I had never followed the sexual offences bill, I was indifferent. But reading your views, they seem to indicate that the desire to reduce age of consent to 16 years was to legitimize child rapes, mpango was kandi, ben 10, cougars, sleep overs and such like. In other words, allow people to satisfy their lusts using children who have no capacity to understand themselves let alone their rights. Very illuminating.
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