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Up to 200,000 girls were impregnated between 2020 March and January 2021 countrywide when schools were closed over the COVID-19 pandemic. /UNFPA.

Fifth Estate

Lowering sex consent age will put girls at risk

By Diana Kiriungi

The recent statistics on school dropouts for girls due to pregnancies and early marriages remind me of the debate, not so long ago, about lowering the age of consent for sex in Kenya.

The statistics by the Ministry of Education showing that 652 girls sat their KCSE exams while pregnant or after giving birth left me wondering what the situation could have been if the consent age was lowered from the current 18 to 16.

As a country that cares so much about the girl child, let us not dare think of lowering the consent age because even at 18, girls are still young and have not adequately developed socially, mentally and psychologically to consent to sex. They are bound to make bad decisions that can cost their lives and their future.

They are not capable of making decisions and judgments about their sexuality.

Statistics documented by the Kenya Demographic and Health Survey shows that at least 15 percent of women and men aged between 20 and 50 had their first sexual experience at 15 and a quarter of women gave birth before 18.

This is dangerous and worrying with the numbers undoubtedly likely to rise even more if the consent age is lowered.

What with the increased cases of sexual Gender-Based Violence in the society exacerbated by the COVID-19 pandemic that forced school closures for a year from March 2020 to January 2021. 

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As a result, school dropouts increased because many children did not resume learning.

And when Education Cabinet Secretary George Magoha released results for the Kenya Certificate of Primary Education (KCPE) examinations, he said that more than 12,000 candidates did not show up to write their papers when schools were re-opened after the COVID break.

The Ministry of Gender recently released statistics showing a 36 percent spike in GBV cases during that period with 5,009 cases recorded.

Gender Cabinet Secretary Professor Margaret Kobia said this marked an increase of 1,411 compared to cases reported in 2019. Nairobi, Kakamega, Kisumu, Nakuru and Kiambu counties accounted for most of the cases.

More shocking are figures by Magoha showing that the number of pregnant girls who sat for the examinations in 2020 increased almost three times, compared to 282 in 2019. There were 652 cases in 2020.

“This shows that the long school closure due to COVID-19 may have driven our learners into many temptations at a time most households were facing enormous challenges,” Magoha said on live TV when he released the KCSE exams results in early May.

Even though he said girls who fall pregnant while in school will be allowed t resume their studies, we should still do more as a society to help girls keep off sex until long after 18 when they will have completed school.

That is why the idea of lowering the consent age to 16 should be opposed at all costs.

The argument by proponents that lowering the consent will reduce the number of teenage boys or young men convicted or jailed for defilement for having what they call “consensual sex with a girl” is insensitive to the reality and the risks it will expose to these young girls.

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Judges in the Court of Appeal argued in 2019 that more young men were finding themselves in conflict with the Sexual Offences Act, forcing them to serve lengthy sentences for having had sexual intercourse with adolescent girls whose consent is immaterial because they were under 18.

Aspects of the country’s Sexual Offences Act conflict with the Children’s Act, and disproportionately punish teenage boys, the judges further argued when they reversed a 15-year sentence on a man who had already served 8 years, accused of defiling a 17-year-old girl.

And in 2016, Justice Said Chitembwe set free a 24-year-old man who was in jail over rape of a 13-year old. the judge in his ruling stated that the girl was “behaving like a full grown-up woman who was already engaging and enjoying sex with men.”

And he added “It is true that under the Sexual Offences Act, a child below 18 years old cannot give consent to sexual intercourse. However, where the child behaves like an adult and willingly sneaks into men’s houses for purposes of having sex, the court ought to treat such a child as a grown-up who knows what she is doing.”

This controversial ruling was so serious that it was awarded the 2017 Gold Bludgeon award for setting a “dangerous precedent assuming that girls who consent to sex before age 18 should not be afforded special protection”.

I am happy with the report by the National Gender Equality Commission (NGEC) which concluded that the recommended age of consent should remain at 18 because any reduction poses a danger to the gains made by the country on gender equality.

According to the report, the primary objective of the minimum age of sexual consent should be to protect children and adolescents from any form of sexual abuse and the consequences of early sexual activity on their rights and development.

I totally agree with, Joyce Mutinda, the NGEC Chairperson that children under 18 are incapable of making comprehensive decisions and judgments about their sexuality and that earlier sexual debut expose children to physical and psychological effects.

And with the argument that it is the boy who is often punished when a boy and a girl are found to have “consensual sex”, it calls for more sensitization on both genders if this is to be avoided.

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The solution can not be to lower the consent age.

The National Council on the Administration of Justice calls for more interventions to reduce the vulnerability of boys who find themselves in conflict with the law when they have sexual intercourse.

More debate is required on this subject, particularly because the report on the age of consent called for amendments to the Sexual Offences Act and the Children’s Act to protect children having “consensual sex.”

Let us not erode the gains made on gender.

The writer comments on Gender and Human Rights.

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