• There have been concerns that the law has been used by parents to settle scores and by women to jail men.
• The law has also been criticised for denying the child defilement victim a voice to say if they participated in sex willingly with their lovers and were not offended.
The Court of Appeal's latest appeal for a dialogue over the sexual consent age is the most serious onslaught on the 13-year-old Sexual Offences Act enacted in 2006.
The Act was proposed by Supreme Court judge Njoki Ndungu, who at the time was a nominated MP. It set stiffer penalties for those engaging in sexual activity with children below 18.
And despite the Act raising the jail terms to include life imprisonment for a conjugal act with a person under 11 and at least 15 years for those below 16, the harsh penalties have not stopped the vice.
But there have been concerns that the law has been used to settle scores. In a recent visit to Nairobi Area remand and prison in Industrial Area, the Senate's Justice Committee was told of how women are using it to jail men.
It has been said that in most cases, police forward files to court for prosecution to meet the demands of parents who want to achieve something beyond justice for their defiled children.
For example, in the case where Eliud Wambui was convicted of defilement, the complainant's father admitted in court that he had demanded Sh80,000 from Wambui, who was his tenant, during a meeting at a chief's office.
He was acquitted by appellate judges Roselyne Nambuye, Patrick Kiage and Daniel Musinga. Wambui had impregnated the complainant, who was his lover, and married her immediately after she cleared high school. She was six months away from 18.
In court, the girl's father said the Sh80,000 he demanded from Wambui was meant for taking care of educational expenses of his daughter and was not for dowry.
“The picture that emerges is of a father righteously indignant that his daughter has been seduced and put in the family way, and who would have the culprit prosecuted unless he would pay some kind of compensation. This, too, raises questions as to whether the prosecution was for the proper purpose of enforcing the law or settling a score,” the three judges ruled.
TEENS DOOM MEN?
The law has also been criticised for denying the child defilement victim a voice to express themselves to courts, on whether they could have participated in the sexual activity with their lovers willingly and were not offended.
That means courts must close their eyes and ears on the possibility that those considered children in the Act could be deprived of the right of choice.
The law states that a person who commits an offence of defilement with a child between 16 and 18 years is liable upon conviction to imprisonment for a term of not less than 15 years.
Although consent is available as defence, if it is proved that such child deceived the accused person into believing he or she was over 18 at the time of the defilement, and the person charged with defilement believed, very few are acquitted out of it.
Nambuye, Kiage and Musinga are concerned that girls between 16 and 17 have unfairly continued to make young men go to prisons, where they are serving lengthy terms.
The judges feel the cure for this lies in dialogue over the age limit, which they feel needs to be lowered to 16, which might mean there is no offence if there was consent.
And the three are not the first judicial officers to raise concerns over the law. Justice Waweru Kiarie raised similar concerns in 2007, when he was a senior magistrate.
“Unless we establish the causes of the many sexual crimes, the laws, however accurate, however harsh, may not secure any security for our grandmothers, mothers, aunts, sisters, wives, sons, brothers and other male relatives,” justice Kiarie ruled in 2007.
AGE OF CONSENT AROUND AFRICA
But that will require review of several Acts that define a child, or open the Sexual Offences Act for scrutiny over whether there are some instances the consent of a person below 18 can be considered.
Although most countries have set the sexual consent age at 18, there is a big number of countries with a lower age limit. Should Kenya consider lowering the majority age to 16, it will be the first in Eastern Africa to do so.
There are 15 African where the sexual consent age is 16, and there are others with the age limit below that, and some with ridiculous age limits. For instance, DR Congo has fixed the maturity age for girls at 14, but their male counterparts have to wait until they are 18.
In Niger and Comoros, anyone who has attained the age of 10 and 13 is an adult, while in Sudan, sex out of marriage is not allowed, but the age when one is ripe for marriage is not specified.
In Libya, adulthood starts from 18 years, but the country's law says a 16-year-old girl can marry if her parents consent. In five countries – Lesotho, Madeira, Madagascar, Sao Tome Prince and Chad – the consent age is 14.