Blanket arrests in teen sex cases ruled unconstitutional risk

The High Court has directed a clear separation in the enforcement of the Sexual Offences Act between consensual peer conduct among adolescents and non-consensual or abusive sexual offences.

In a landmark judgment delivered by Justice Bahati Mwamuye, the court held that agencies enforcing the law must distinguish between “consensual, non-coercive, and non-exploitative sexual conduct between adolescents of close age proximity” and conduct that is non-consensual, coercive, exploitative, or involves abuse or power imbalance.

It stressed that these are two fundamentally different categories of conduct that cannot be treated in the same manner under criminal law.

The court added that such blanket enforcement risks conflict with constitutional protections, including rights to equality, dignity, privacy, and children’s rights under Articles 27, 28, 31, 43, and 53 of the Constitution.

"Anything less would permit criminal law to operate in a manner disconnected from constitutional values," he said.

At the centre of the ruling is the requirement for a context-based approach in all investigations and prosecutions involving minors.

Police officers, investigators, and prosecutors are now required to examine the facts of each case, including age proximity between parties, whether there is consent, and whether there is any evidence of coercion, exploitation, or power imbalance.

The court further held that the Sexual Offences Act must be interpreted in harmony with the Constitution.

 As part of its orders, the court directed the Office of the Director of Public Prosecutions to develop and publish clear prosecutorial guidelines to ensure consistency in handling cases involving consensual adolescent peer relationships.

"The National Police Service is directed to, within a reasonable period, review and align its investigative and arrest protocols relating to sexual offenses involving minors to ensure compliance with this judgment and the constitutional rights of children," Justice Mwamuye further ordered.

In addition, state agencies in health, education, and child protection were directed to develop coordinated frameworks to support adolescent access to sexual and reproductive health information and services.

"They are hereby directed to develop coordinated policy and implementation measures to ensure adolescent access to sexual and reproductive health information and services without fear of criminalisation in circumstances consistent with this judgment," the judge ruled.

The court also issued consequential orders suspending two disputed ongoing criminal proceedings where the conduct falls within consensual, non-exploitative adolescent peer relationships.

The ruling introduces a more differentiated enforcement regime for sexual offence cases involving minors, requiring law enforcement and prosecutors to move away from blanket application of the law.

Instead, they are required to undertake careful, fact-specific assessments before initiating or sustaining charges.