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February 20, 2019

Do teens have a right to have consensual sex?

Last week, we focused on the gains children have made since the constitution was promulgated in 2010. In particular, we dealt with the rights of surrogate children.

Today we focus on the thorny issue of pre-marital sex. In the divine arrangement, sex is for married people only. It is guarded and intended to be that way since it forms the route through which procreation takes place.

Premarital sex is not allowed in many communities where the social and moral values are respected. However, many people engage in premarital sex when they turn 18 since there is no law in Kenya that bars it so long as it is between two consenting adults.

This can partly explain why we have the phenomenon of children born out of wedlock in Kenya. There are many homes where children grow with single parents. I will leave that area for now and shift the focus to children.

Currently the levels of morality among our children have really gone down the drain. Morality has literally been thrown to the dogs. No one wants to accept the blame. It is a sad and an unfortunate reality that our children have started engaging in sex at an unprecedented levels.

The young boys and girls are already talking about kissing, hugging, loving etc when they are as young as nine.

Some argue that they have a right to enjoy sex with the people they feel attracted to so long as it is by consent.

It is undisputable that children are watching a lot of stuff online and on social media that is polluting their minds. As parents we have lost the plot. We are not doing everything that we should be doing to keep the kids off screen time, especially the adult sites.

Recently, we have seen a disturbing wave of very young kids engaging in sex and drinking orgies. Condoms are being recovered at the scene of ‘crime’ every time they get busted. One wonders whether they even know how to use them. Who is selling the ‘CDs’ to these kids? The vendor must search his soul and ask himself or herself whether they are doing the right thing. As a parent, do you discuss sex with your children?

In CKW V ODPP-PT 6/13 filed in Eldoret, the children moved the court in a bid to get the court to return a finding that would allow them to enjoy sex like married couples and to get the court to declare Sections 8 (1) and II (1) of the Sexual Offences Act invalid, to the extent that they criminalise consensual sexual relationships between adolescents.

Justice Ochieng in his wisdom brought the issue to rest in a manner that promotes the best interest of the child and upholds morality and family values.

In the judgment, he made the following observations;

“In Kenya, there is no express or implied requirement that when two children are involved in sexual penetration with each other, both of them should be charged with the offence of defilement.

“However, there is no legal bar to the prosecution preferring criminal charges against both the children. In effect, if the prosecution had reasonable cause to charge both minors, they could do so.

“If anything, I do find that the provisions of law, which are in issue, were aimed at achieving a worthy or important societal goal of protecting children from engaging in premature sexual conduct.

“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.

To me this is a judgment that will go a long way in protecting the children from premature pregnancies.

“Premature sex will also expose the vulnerable children to venereal diseases and HIV/Aids at a very young age. The young girls will end up dropping out of school. The children will end up violating their own right to health and education as guaranteed under Article 43 of the constitution. Such children end up becoming a burden to the parents and the economy as a whole.”

Let us put our hands together and educate the children about these issues so that we can have a better tomorrow.

Parents, teachers, the church and the society have a role to play in ensuring that we give our children a better tomorrow.

Next week, read about the role the courts have played in shaping the children and the family.

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