On the 27th August, 2010, whether or not we voted for or against the Harmonised Draft Constitution of Kenya, we peaceably gave to ourselves a Constitution that declared at Article 260 that a child is "an individual who has not attained the age of eighteen years" and at Article 53 that "Every child has the right to be protected from abuse, neglect, harmful cultural practices, all forms of violence, inhuman treatment and punishment, and hazardous or exploitative labour" and "A child's best interests are of paramount importance in every matter concerning the child".
The Constitution says nothing about the "age of consent" when it comes to sexual relations but, in accordance with both Article 260 and 53, the Children Act is unequivocal that a child cannot give consent when it comes to sex acts with the child. In the eyes of the law, any adult who commits a sex act with a child commits an offence. That, at least, would be the national consensus if it were not for two seminal events this past year: the judgment of the High Court in Criminal Appeal No. 32 of 2015 and the proposal by the Leader of the Majority Party in the National Assembly to amend the Sexual Offences Act to provide for the age of sixteen years as the age of consent.
This is what the Judge declared in the criminal appeal,
It is the law that a child below the age of 18 years cannot consent to sex. Section 8 (5) qualifies the provisions of Section 8 (1) to 8 (4) which penalizes defilement. It can easily be concluded that it is immoral for one to have sex with a child under the age of 18 years. However, where the same child under 18 years who is protected by the law opts to go into men's houses for sex and then goes home, why should the court conclude that such a person was defiled. (sic) In my view that cannot be defilement.
The proposed amendments to the Sexual Offences Act would have lowered the age below which it would not be an offence to have sex with a child to sixteen years. These two things are troubling about what those in positions of power are capable of doing while the world continues to spin around us.
Had I been the one drafting the Sexual Offences Bill in 2006, I would not have allowed the barn-door-sized loophole that is section 8(5) that allows a defence where the accused claims that he or she was hoodwinked into having sex with a child because the child deceived him or her that the child was eighteen years old. However, if I had been compelled to insert such a provision, safeguards would have to be put in place: simply claiming deceit would not be enough. Proof would have to be adduced. The burden to prove that the child had the capacity to deceive an adult about the child's maturity would lie with the adult and the standard of proof should be high -- certainly higher than the "preponderance of proof" standard usually relied on.
Be that as it may, I fail to see how the Judge was persuaded that the appellant had proven deceit; it could not be out of the blue that the child chose to stay away from home and put up with the man for three days. Especially after the child's siblings came looking for her in the man's house, every sexual ac after that moment was sufficient to uphold his conviction. But taken together with the proposal in the following year to lower the age of consent o sixteen years, I fear that our children have ceased to be a high priority where their safety is concerned.
As a nation we have decreed that a child is any person who hasn't attained the age of eighteen years. We did this consciously. We were not deceived. The effect of this decree would be felt in many areas but more so on matters to do with the protection of children from harmful cultural practices such as early marriage or protection from abuse and all forms of violence such as sexual exploitation by adults. We did not make this decision lightly; those advocating for the rights of children have advocated these very policies for decades. In 2010, the rest of Kenya endorsed their views. It feels like a stab in the back when the High Court and the National Assembly would seek to reverse these gains, effectively amending the Constitution by the backdoor.
It seems overwhelming to fight on so many constitutional fronts these days but it is worth the fight for us to fight to keep children safe even from their own government. The proposed amendments to the Sexual Offences Act were eventually withdrawn but the Director of Public Prosecutions is yet to appeal the wrongheaded decision of the High Court. If we are to assure our future as a nation we must not fall prey to indolence when it comes to the care and protection of our children; we must remain vigilant as well as give parents better tools for caring and protecting their children. The courts and Parliament shouldn't be tools for the exploitation and abuse of our children.