Minor-to-minor sexual consent in Kenya An analysis of the set precedent

Abstract

Rising incidents of consensual sex between minors has been an area of concern in Kenya being a disputable issue until 2014 when the High court in Eldoret set a precedent in CKW v. Attorney General and Another.1Initially, the position in law was charging the adolescent boy with defilement where he was older than the girl. This was found discriminatory against the boy and the set precedent has been appreciated for its neutrality. However, from the cases decided after this case, the courts are still facing a challenge while dealing with the issue of consensual sex between minors. Furthermore, the CKW case failed to take regard of several aspects that surround the life of the adolescent while acknowledging that they are also citizens with rights. The consequences of the criminalisation of consensual sex between minors has proved that the best interest of the child principle was not carefully assessed. Using mostly legal instruments and case law, this study analysed how both Kenyan legislation and courts have attempted to deal with the issue of consensual between minors. The study then proceeds to make a comparison with South African law. An observation is made from the study which reveals that the criminalisation of consensual sex between minors prevents a good number of adolescents from accessing information such as information on HIV and STDs, that will help them in decision making, raising the number of unwanted pregnancies and HIV infections among them. However, the consequences of allowing adolescents to engage in consensual sex are severe as evidenced by surveys done in South Africa.This study answers the question regarding the effectiveness of Kenyan courts and Kenyan legislation while dealing with the issue of consensual sex between minors Being a rampant issue, the parliament had proposed to lower the age of consent to 16 years as a possible solution. South Africa took this approach and the consequences reveal that lowering the age of consent will be endangering the lives of minors. This paper shall therefore analyse the effectiveness and the deficiencies in the set precedent and finally recommend the guidelines on how the state and courts should instead address the issue of minor-to-minor sexual consent to safeguard the future of the minors while guaranteeing their best interests.