It’s an “unfolding tragedy” which requires serious interrogation, three Appeal Court judges said in a recent judgment.
“Our prisons are teeming with young men serving lengthy sentences for having had sex with adolescent girls whose consent has been held by courts to be “immaterial” because they were under 18.
“Where to draw the line is a matter that calls for a candid national conversation,” Judges Roselyn Nambuye, Daniel Musinga and Patrick Kiage said.
“This appeal epitomises, for the umpteenth time, the unfair consequences that are inherent in a critical enforcement of the Act and the unquestioning imposition of some of its penal provisions which lead to statute-backed purveyance of harm, prejudice and injustice
“It poses, one more time, whether it is proper for courts to enforce, with mindless zeal, that which offends all notions of rationality and proportionality,” they said.
In Kenya, under the Sexual Offences Act passed in 2006, having sex with a person under the age of 18 is labeled “defilement”.
The matter before the judges was a second appeal, which was ultimately successful, by Eliud Wambui, who had been sentenced to 25 years in prison a decade ago because he had a relationship with a teenager, said to be 17 years and five months old at the time.
At the time of his trial, the couple was “married” and they had a child.
Wambui protested that he was “like Shakespeare’s King Lear - a man more sinned against than sinning”.
In argument before the three judges, counsel for the State said the offence had been proved because “he made her pregnant, she was at school and incapable of giving consent”. The sentence might be unfair but “that is law”, it was submitted.
But the appeal judges disagreed and said the lower courts had not interrogated the facts.
One of was that the teenager’s birth certificate was only a copy which had “no probative value”.
Another was that charge had only been laid after Wambui refused to pay compensation of 80,000 shillings (£616) to her father.
In her evidence, the teenager said she was arrested when she was six months pregnant and locked up for three days before finally making a statement to police.
“I was released. He was arrested. He had another wife but he rented for me a home. I was his second wife. I now have his child.”
The judges said pressure to have him arrested appeared to have come from her parents.
“One asks whether it is lawful for someone, already over the age of 18, to testify against the father of her child whom she considers her husband?
“Her father also admitted that if he had been paid, the matter would have been considered settled...it raises questions as to whether this was using the law to settle a score.”
They said: “The Act needs serious re-examination in a sober, pragmatic manner.
“Many other jurisdictions only criminalise sexual conduct with children younger than 16 when, while they may not have attained the age of maturity, may have reached the age of discretion.”