Examining the Minimum Age for Sexual Consent Under the Kenyan Criminal Justice System

Abstract

The age of consent in Kenya is set at 18 years. Any sexual intercourse with a person under this age is illegal and attracts dire consequences to the extent of serving a life imprisonment even though the law accords a defense such as the minor deceived the accused to be above the age of maturity and the accused reasonably believed that he/she was of age. However, this defense is rarely applicable owing to the stringent application and invocation of the age of consent. There is an arbitrary application of this concept and any attempt by different actors in the justice system among them judges to call for a reform of the law have been met with anger, fury and backlash. Based on this sorry state that has seen many minors teeming in our prisons, this study sets out to call for a reconsideration of the law on the age of consent. The study calls for an honest national discourse on this subject so as to reform the character and behavior of minors. This study propagates the take ascribed to the celebrated author, Chimamanda Ngozi Adichie, that, ‘… tell her that her body belongs to her and her alone, that she should never feel the need to say yes to something she does not want, or something she feels pressured to do. Teach her that saying no when no feels right is something to be proud of.’ In order to make the informed decision Chimamanda talks of, [with necessary modifications to include both sexes], the minors need to be engaged in this discourse of maturing of children, morality, autonomy, protection of children and the need for proportionality in punishing sexual offenders. This study culminates in proposing a number of recommendations that will create a fair and just criminal justice system and therefore create a harmonious society where dreams of consenting minors to sexual escapades’ potential is not thwarted because of rigid and obsolete legal regime that seeks to set abstract limits on natural processes like maturity.