EDITORIAL: Let us act in the best interest of the child

Three judges of the Court of Appeal recently called for a candid national conversation on the age of consent for sex. Citing countries where this age is pegged at 16 years or lower, the judges expressed concern that prisons are teeming with young men serving lengthy sentences for having had sex with adolescent girls, whose consent could not be taken into consideration because they were under 18.
Such a conversation is important, especially where it is felt that the law is hurting a section of the population, in this case adolescent boys. However, it must be informed by facts and guided by good intentions. Above all, any actions arising from it must be taken in the best interest of the child — bearing in mind that Kenya has signed the United Nations Convention on the Rights of the Child and domesticated it by enacting the Children Act.

PREYING
Statistics paint a grim picture of Kenya’s young and emphasise the need for our children and adolescents to be protected from sexually abusive and exploitative relationships.
According to the Kenya Demographic and Health Survey (2014), about 32 per cent of girls and 18 per cent of boys had experienced sexual violence while child marriage stood at 23.9 per cent. It is estimated that 33 per cent of all new HIV infections occurred in adolescents and young people aged 15-24 with girls being at two-to-three times higher risk of contracting the disease. Approximately 20 per cent of all first antenatal care visits in Kenya are of mothers aged 10-19.
Add to these statistics recent media reports of thousands of teachers sacked for preying on their underage pupils and the crises of teenage pregnancies and child marriages in some communities. Cases of sexual violence against children are rampant too.
It should shock our national conscience that a proposal to lower the age of consent should come from our courts. The primary objective of the minimum age of consent is to protect children and adolescents from exploitative and abusive sexual liaisons, and the consequences of early sexual activity on their rights and development. This includes their right to health and education.

ENDANGERING
In Kenya, the age for sexual consent is not defined; it’s assumed to be 18 years as the Children Act 2001 defines a child as ‘any person below age of eighteen’. The Sexual Offences Act 2006, section 8(1) states that a ‘person who commits an act which causes penetration with a child is guilty of an offence termed defilement’ and stipulates sentences for different age cohorts of children.
Granted, the objective to protect needs to be balanced with the need to avoid unnecessary criminalisation of adolescents engaging in mutually sought, consensual sexual behaviour, as argued by the three judges. However, there are several options for striking this balance without endangering children.
Many countries consider as a criterion the age difference between the partners involved as one indication of establishing the balance of power between them in dealing with cases in which two underage adolescents are involved. Kenya is exploring this route through an ongoing law review. We are aware that the National Council for Administration of Justice Taskforce on Children Matters has already drafted Guidelines on Child Offenders under Sexual Offences Act 2006 to guide the sentencing of children accused of a sexual offence under the Sexual Offences Act.
Under the draft guidelines, the age of sexual consent should remain at 18 years. However, if two underage individuals involved in a case have a difference of two to three years, and it is established (through the testimony of the alleged victim) that they are in a relationship, then they should be treated as children in need of care and protection, not criminals, and supported with guidance and counselling and how to deal with issues of sexuality.

PROSECUTION
The draft guidelines are in the Attorney-General’s Office for consideration and, once enacted, should provide a solution to the crisis the judges are seeking to address. This approach best protects the rights of children — protecting them from predatory and abusive sexual behaviour by adults, but respecting the rights of adolescents — and leaves them free to seek necessary medical advice and guidance without fear of prosecution.
We support the proposal by the taskforce to retain the age of consent at 18, because lowering it will expose children to more risks and exploitation. It will force the lowering of the age of children to engage in paid labour, marriage and, as a whole, eventually lower the age of childhood in Kenya.
The age of consent is a protective measure that is sacrosanct. It must not be tampered with.