Is 16 years old enough to consent to have sex?

Harriet Kaveta testifying in a case in which her boyfriend has been charged with defiling her while she was a 17 year old./FILE
Harriet Kaveta testifying in a case in which her boyfriend has been charged with defiling her while she was a 17 year old./FILE

The government wants to lower the age of consensual sex from 18 years to 16.

This change is contained in the amendment to the Sexual Offences Act hidden in The Statue Law (Miscellaneous Amendment Bill) 2016.

If the amendments are passed, teenagers aged 16 years can have consensual sex without legal consequences.

Though campaigners for girls’ rights oppose the amendment, the Federation of Women Lawyers chairperson Josephine Mong’are told the Star the amendment seeks to protect boys.

“The boy child has become the unintended victim of the Sexual Offences Act. A lot of teenagers are in relationships without their parents’ knowledge. If the girl’s mother does not like the fact that you have a boyfriend, she goes to the police station and claims rape or defilement,” she said.

Mong’are, who led a team drafting the amendment, says it aims to introducing Romeo and Juliet clauses in the Act.

Romeo and Juliet laws and clauses concern young adults or teenagers who are a few years apart and have willingly had sexual relations.

The provisions concern incidents in which younger individuals have passed the age of puberty.

An incident in which younger individuals have not entered puberty is typically defined as sexual assault on a child.

“The amendments have nothing to do with protecting predators. If the amendments are passed, magistrates will have the ability to make a decision in determining if this was a boyfriend-girlfriend relationship, as opposed to it being presented as a defilement case,” Mong’are said.

An investigator in the Child Protection Unit, who did not wish to be named, welcomed the amendments.

The source said it will make it easier to investigate such cases, as some parents are taking advantage of the Act.

“Most of the time the girl is forced to report the matter to the police because her parents don’t like her boyfriend. This in turn makes it hard for investigators to collect factual information about the relationship because the girl is not telling the truth, owing to parental pressure,” the investigator said.

The Bill has been tabled for the first reading, and is now in the departmental committee on Justice and Legal Affairs. The team will report to the House.

Kenyans have until December 27 to give their views on the amendment.