By: ABIUD OCHIENG
Sometime in 2013, a young boy we shall call Junior, then aged 16, invited his likewise 16-year-old girlfriend Angel over for the weekend. They engaged in the usual teenage banter, which somehow, it would later be claimed, led them to having sex and the girl spending the night away from home.
Junior was in Form One at the time, but he soon found himself in remand at a juvenile home, facing the possibility of a three-year jail term if found guilty of having sex with a minor.
Angel, meanwhile, was continuing with her education, and while admitting that she had sex with her boyfriend, she had told a court of law that it was consensual, and that she had pressed charges against Junior at her father’s instigation.
“He did not force me,” she said. “It was by consent, but when I returned home the next morning my father asked where I had spent the night. When I told him what had happened, he took me clinic for a pregnancy test, which came back negative. He then took me to the police station to record a statement.”
That marked the beginning of Junior’s woes as the police and the Director of Public Prosecutions (DPP) used the complaint to initiate his prosecution. He was arrested shortly thereafter and charged with defilement, contrary to the Sexual Offences Act.
The charge was that on May 26, 2013, he “intentionally” and “unlawfully” had penetrative sex with a 16-year-old girl. He denied the charges and was released on a Sh100,000 bond. However, since his family could not raise the money, he remained in custody.
The case would not be much of a news story were it not for a twist that Junior has introduced to it, and which has led to the suspension of proceedings pending the determination of a constitutional issue he has raised at the High Court.
Through his lawyer, Oscar Sang, Junior argues that the law criminalises consensual sex between adolescents, and so wants Sections 8 (1) and II (1) of the Sexual Offences Act declared invalid.
“The statutory provisions, in practice, promote disproportionate prosecution of the male child in incidents of consensual sexual acts between minors, even when it was clear that the female child was a willing participant in the sexual acts proscribed by Sections 8 (1) and 11 (1) of the Sexual Offences Act,” argues his lawyer.
Sang further says that the Act violates the rights of the male child to equal protection and benefit of the law as it indirectly discriminates against boys, contrary to Article 27 (5) of the Constitution.
Junior says he is not challenging the constitutional validity of Sections 8 (1) and 11 (1) of the Sexual Offences Act in so far as those provisions criminalise adults, and that neither is he challenging the constitutional validity of those statutory provisions where they criminalise children who engage in sexually indecent acts with other children in a way that is non-consensual, forceful, violent or exploitative.
His contention, in a nutshell, is that where minors engage in consensual sex, they, especially the males, should not be criminalised.
The chairman of the North Rift Chapter of the Law Society of Kenya, David Rioba Omboto, who participated in the proceedings as an Amicus Curiae (a friend of court who gives an independent view), pointed out that, since Angel had willingly gone to Junior’s house, the law should not have discriminated against Junior.
“In the opinion of LSK, if the two children were to be punished for engaging in sexual intercourse, that would be appropriate. The law was applied in a discriminatory manner when it was only the boy who was charged while the girl was let off scot free,” said Omboto.
However, in his ruling, Justice Fred Ochieng’ declined to declare the law unconstitutional, saying that when a person commits a penetrative sexual act with a child, he has already committed defilement.
“The absence or otherwise of consent from the child is not a factor,” said Justice Ochieng, adding that in Kenya there is no express or implied requirement that when two children engage in penetrative sex both of them should be charged with the offence.
However, there is nothing to prevent the prosecution from preferring criminal charges against both children. In effect, if the prosecution had reasonable cause to charge both minors, it could do so.
“Based on the facts of this case, as alluded to by the DPP, Junior did not lodge any complaint against the girl with whom he had consensual sexual activity. Therefore, that is the reason that has been proffered for not having also brought charges against the girl,” Justice Ochieng argued.
The judge, however, noted that if two minors were genuinely, freely and consciously engaging in consensual sex , it was unlikely that either of them would lodge a complaint against the other. A complaint against one party connotes an element of coercion or deceit by the other.
But, even if the minor does not complain against the other person, it does not negate the offence of defilement. The fact that the victim has or has not lodged a complaint is not a factor in determining whether or not the offence had been committed, the court heard.
The judge, in declining to declare the said law unconstitutional, further stated that in Kenya, the law does not distinguish between the girl and the boy in Section 8 of the Sexual Offences Act. In effect, the law, as enacted, does not discriminate.
“It will, therefore, be a matter of evidence, which is yet to be led, to enable the court to establish the reasons why Junior was charged with defilement while his willing female partner was not charged,” said Justice Ochieng’.
“But even if it is ultimately proved that Junior was charged, largely because he is a boy, that would not render the statutory provisions discriminatory,” Justice Ochieng ruled.
He said the discriminatory application of a law, if established, is wrong, but pointed out that such a conduct by the person who exercises it does not render the law itself discriminatory.
The court also found that the provisions of the law were aimed at achieving the worthy and important social goal of protecting children from engaging in premature sexual activity.
“Children are particularly vulnerable, and they, therefore, require legal protection. The law, which seeks to offer them such protection as they need, is not unconstitutional,” said Justice Ochieng. He however observed that Junior had taken a bold step in tackling an issue that would ordinarily have remained unspoken.
Although Junior did not succeed in his application, the judge said he had brought to the fore “the need to consider whether or not there are other measures which were more appropriate and desirable for dealing with children, without having to resort to criminal proceedings”.
He also challenged professionals in matters of children’s psychology and in the overall wellness of children to conduct appropriate studies in Kenya with a view to ascertaining if there were mechanisms and procedures that could be put in place to protect children that were at the same time proportionate to both the circumstances of the child and the offence.
“As we all work together in trying to achieve the most optimum systems of providing them with protection in a sensitive manner, we will be striving to live up to the provisions of Article 40 of the United Nations Convention on the Rights of the Child,” said Justice Ochieng’.
The Attorney-General, through litigation counsel Lydia Lung’u, submitted that Sections 8 and 11 of the Sexual Offences Act were not inconsistent with the Constitution.
“Nowhere in the Constitution had consensual sex between minors been legalised,” the AG pointed out. “Therefore, when such acts were criminalised by the Sexual Offences Act, the statute was not inconsistent with the Constitution.”
The AG also pointed out that the contested provisions of the Sexual Offences Act did not distinguish between males and females. Either gender could now be charged with the offence of defilement, unlike under the provisions of the Penal Code, which had only criminalised the actions of males.
Lung’u added that Angel’s consent could not be an acceptable excuse for the commission of the offence because minors are not capable, in law, of giving consent.
“The decision to prefer charges against Junior and to prosecute him are matters which are within the mandate of the prosecution. Therefore, it would be wrong to find fault with the prosecution for carrying out their lawful duty,” lawyer Lung’u explained. The invalidation of the two statutory provisions, she continued, would be repugnant to children’s morality.
On his part, the DPP, through lawyer Zachary Omwega, said the rights and fundamental freedoms contained in the Bill of Rights, which is an integral part of the Constitution, were not all absolute, and that it was only the rights and fundamental freedoms cited in Article 25 of the Constitution that could not be limited in any way. As the rights which Junior was fighting for did not fall within Article 25, the DPP submitted, they could be lawfully limited.
Junior had also told the court that he could not meet the terms of his bond, resulting in his being held in custody and being unable to resume learning while his girlfriend continued with her education. It was only later that he asked the trial court to review the terms of the bond, and the court agreed.
Omwega, however, said that Junior’s failure to resume learning was not attributable to the DPP. Having been granted bond or bail, he added, Junior was not obliged to remain in custody.
“But even if he had remained in prison, nowadays, there are informal learning centres within our prisons. In effect, Junior could have continued his education even if he had remained behind bars,” explained Omwega.
The DPP also introduced a different dimension to the case by stating that “the prosecution had to act on the complaint that was made by Angel”.
“The case would have taken another turn if Junior had also made a complaint, which was not the scenario in the instant case,” he added.
Omwenga emphasised that the decision to prosecute Junior was necessary to ensure that children’s welfare is well taken care of.
“Junior is a minor who should have been concentrating on his education. That will be in line with Section 4 (3) (c) of the Children Act. We therefore urge the court to dismiss the petition so as not to open a Pandora’s Box, whose contents will be incapable of being contained by the Kenyan society,” Omwega said.