Court of Appeal judges made a ruling that established a proposal for change of the law to lower the age of consent for sex to 16 years from 18 years.
The judges were compelled to make the decision after reviewing a case of a man who had been sentenced to serve 15 years in jail for impregnating a 17-year-old girl.
The three judges Daniel Musinga, Roselyn Nambuye, and Patrick Kiage made a ruling indicating that the time had come for the country to consider making changes to the Sexual Offences Act owing to lengthy jail terms being given to young men that are convicted of defilement.
As stated by the judges, there is a need for the country to evaluate the challenges of maturing children, autonomy, morality, protection of children and the need for proportionality with regards to punishing sex pests.
The senior members of the judiciary also observed that the debate on lowering the age of consent was overdue since many men were in jail for sleeping with teenage girls “who were willing to be and appeared to be adults”.
“Our prisons are teeming with young men serving lengthy sentences for having had sexual intercourse with adolescent girls whose consent has been held to be immaterial because they were under 18 years,” ruled the judges.
They also stated that underage boys and girls often engage in sexual activities “with their eyes fully open” or rather wilfully.
“They may not have attained the age of maturity but they may well have reached the age of discretion and are able to make intelligent and informed decisions about their lives and their bodies. That is the mystery of growing up, which is a process, and not a series of disjointed leaps,” they added.
In the case under review by the judges, the man, Eliud Waweru was sent to jail after impregnating a girl that had just completed high school.
He went ahead to establish an agreement with the girl’s father to pay Ksh80,000 dowry in the presence of the area chief.
He, however, failed to raise the money in time and was arrested and charged as a result.
The Court of Appeal judges referred to the case as a situation wherein the court was called upon “to enforce with a mindless zeal that which offends all notions of rationality and proportionality”.
They consequently ruled, “This appeal epitomises for the umpteenth time the unfair consequences that are inherent in a critical enforcement of the Sexual Offences Act, No 3 of 2006 and the unquestioning imposition of some of its penal provisions which could easily lead to a statute-backed purveyance of harm, prejudice and injustice, quite apart from the noble intentions of the legislation”.
According to them, the girl was forced by her parents to fix the man. She communicated the same in two letters she wrote threatening to kill herself.
“The question that arises is whether it is lawful for a girl who is already over 18 years and is a mother, and who has chosen not to testify against the father of her child, whom she considers to be her husband, to be locked up to force her to testify. Waweru is like Shakespeare’s King Lear, a man more sinned against than sinning,” stated the judges.defilement child arrest sex
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