NAIROBI, Kenya, Dec 2 – A Nairobi-based community advocacy group Crawn Trust has condemned the proposal to have the age of sexual consent lowered from 18 years to 16 years, saying the move is ill-advised, illegal, and unconstitutional.
The group has been running a campaign against the proposal, arguing that lowering the age of sexual consent will endanger girls by giving an opportunity for legal waivers to sexual predators.
“The objective of the campaign is to safeguard the age of sexual consent to protect children from sexual abuse and consequences of early sexual activity. The simple yes given by a child, shouldn’t be taken to mean it is informed consent,” the advocacy group during a panel discussion in Nairobi on Monday.
The discussion to have age for sexual consent was stirred by a three-judge bench in March 2019, when they issued an advisory opinion recommending the lowering of the sexual consent age to 16.
The bench argued many young men, mainly teenagers, were languishing in jail for engaging in sexual acts with underaged persons of the opposite gender.
They further contended that while the law expressly states that a child cannot consent, most teenagers are engaging in consensual sexual acts and thus unfair to have the ‘young men’ in these instances jailed, hence proposing an amendment in the Sexual Offenses Act.
Under Section 42 of the Sexual Offenses Act, a child is deemed incapable in law of appreciating the nature of a sexual act. Capacity entails one’s ability to understand the consequences of the said acts for which consent is given.
Consent does not simply mean a yes or no, under the law. Informed consent therefore entails having the right information and ability to understand the consequences of giving such consent.
Lady Justice Njoki Ndung’u of the Supreme Court who is among judges who have openly expressed their opposition to the proposal said there was need to address moral standards of the nation to consolidate existing safeguards under the law.
“A recent report from the prison indicated that most young men have been jailed due to stealing, manslaughter and murder, assault and sexual offenses, what surprises me is that no one is saying young men are suffering in jail due to stealing, assault or murder why is it that we are only hearing that young men are suffering in jail due to sexual offenses?” the judge posed.
“I think as a country we have a very bad culture of taking sexual offenses as lesser crimes,” she said.
Ndung’u also noted that parents have the singular responsibility to instill good morals to their children from young age to raise upright citizens who have respect for others.
“In our homes what are we teaching our boys. Some of us we only tell them don’t steal you will be jailed, don’t fight or commit assault you will be jailed. Who then will tell them that it’s wrong to touch a young girl under the age of 18 without her consent or you will be jailed? posed Ndung’u.
While giving the advisory on lowering of the age of sexual consent, the Appellate Court also observed that other jurisdictions such as United Kingdom have pegged the age of consent at 16 years.
Nominated Member of Parliament Jennifer Shamalla commenting on the proposal said Kenya should cease copying everything that happens in other jurisdictions that have their age of sexual consent placed below 18 years, saying the country should only borrow positive practices that are beneficial to the country.
“We shouldn’t accept cultural colonization, let’s move with our own pace we have our own culture and traditions and we should make laws that are in line with our culture,” she stated.