Sexual offences law not to blame for young men in jails, says Njoki Ndung'u

Survey shows that only four per cent of children in borstal institutions are sexual offenders

In Summary

• Justice Ndung'u says the clamour to amend the law under the guise that it has filled jails with young men is misplaced and false

• Nominated MP Jennifer Shamalla advised the judiciary not to be used to introduce practices that offend family values and the believes of the majority

Supreme Court Justice Njoki Ndung'u. Photo/FILE
Supreme Court Justice Njoki Ndung'u. Photo/FILE


Supreme Court Judge Njoki Ndung'u has disabused claims that the majority of young men in jail are those who cannot zip up. 

Ndung'u said the Sexual Offences Act is not to blame for the number of young men in jails.

The judge, who sponsored the law in 2006 when she was a nominated member of Parliament, on Monday said the clamour to amend the law under the guise that it has filled jails with young men is misplaced and false.

"I have personally followed the narrative that this law has put the majority of the young men in jails. It is actually not true. My office took the effort to go find out the facts at Kamiti Maximum Prison. We found that the four men cited, were actually young adults," she said.

She was addressing a forum organised by an advocacy group at a city hotel to discuss the proposal to lower the age of sexual consent.

Ndung'u dismissed as a myth that many young men are languishing in jails on account of sexual offences, stating that the law cannot allow minors to sue or be sued.

She said that the law recognises people as children if they are below 18 or adults once they are above 18. She explained that the Act was a carefully negotiated document that bridged extreme views.

The judge cited a recent survey that showed that only four per cent of children in borstal institutions are sexual offenders and that the majority are in for offences such as stealing, assault, robbery with violence, manslaughter and murder.

 "Why the obsession with sexual offences yet young men are in for different crimes? Are we saying it is okay to hold them in for these other offences but not sexual crimes?" she asked.

The judge said the erosion of family values and failure by parents to teach their children – particularly their sons – how to behave on sexual issues were to blame, not the law.

"How many of us as parents tell our sons not to touch girls without their consent? We only tell them not to steal, not to fight and other things but shy away from sexual issues," she said. "So the boys and their parents put themselves in jail, not the law." 

Nominated MP Jennifer Shamalla was concerned that the Judiciary was being used to introduce controversial issues through the backdoor. She accused most of the (Western) countries where liberal ideas like a lower age of consent are allowed "on a mission to culturally colonise Africa."

"Most of these countries [in the West] built their wealth and prosperity using the slavery of Africans for over 300 years. They then went on to politically colonise us and now they want to culturally colonise us. We must interrogate what we constantly call progressive," the MP asserted. 

Citing Canada where a group of paedophiles are agitating for recognition in law as a sexual orientation, Shamalla said that not everything tagged progressive should be given the pass and implemented in society. 

A policy brief issued by Crown Trust, the advocacy group that organised the gathering, holds that the push to lower the age of consent from 18 to 16 should be opposed as it would destroy the lives of the young people.

"Consent does not simply mean yes or no. Informed consent [must] entails having the right information and ability to understand the consequences of giving such consent," the brief reads in part, explaining that the minors do not have the capacity to given consent for sexual engagement in law. 

The brief, citing the 2014 Kenya Demographic and Health Survey that showed that 62.5 per cent of girls and 59.4 per cent of boys aged 15-19 had never had sex,  dismissed the argument that it was the minors who were pushing to be allowed to engage in early sex.