Uproar over plan to cut age of consensual sex from 18 to 16
Students in Eldoret sitting for exams: A 16-year-old is a Form Two student in the middle of secondary education, whose participation in consensual sex is also likely to see her drop out of school. PHOTO | NATION MEDIA GROUP | FILE |
What you need to know:
The amendment, which cuts the consensual age for sex from 18 to 16 years, is contained in the omnibus legislation that the National Assembly is expected to pass before breaking for Christmas holidays.
A 16-year-old is a Form Two student in the middle of secondary education.
The amendment, for instance, means that a female Form Two student can have consensual sex and risk getting pregnant but cannot be legally married because they will not have attained the age of 18 provided for in the Marriage Act.
Legal experts and rights campaigners were yesterday up in arms against a controversial proposed amendment to the Sexual Offences Act that may expose girls to early pregnancy and marriage.
The amendment, which cuts the consensual age for sex from 18 to 16 years, is contained in the omnibus legislation that the National Assembly is expected to pass before breaking for Christmas holidays.
A 16-year-old is a Form Two student in the middle of secondary education, whose participation in consensual sex is also likely to see her drop out of school.
The amendment, for instance, means that a female Form Two student can have consensual sex and risk getting pregnant but cannot be legally married because they will not have attained the age of 18 provided for in the Marriage Act.
Besides, it is not clear what the proposed amendment seeks to cure — given that at the current 18 years, the consensual age is at par with the age of marriage.
The proposed changes are contained in the Statute Law (Miscellaneous Amendment) Bill 2016 that the National Assembly is expected to pass this week.
Federation of Women Lawyers (FIDA) condemned the proposal arguing it violates Kenya’s commitment to international conventions on children’s rights.
FIDA vice-chairperson Terry Omondi said the internationally accepted age for one to become an adult is 18 years and any attempt to reduce that is illegal.
Ms Omondi said amending the consenting age would open society to multiple challenges as it does not only apply to sexual decisions but to other aspects of society such as marriage and signing of contracts.
“Consent is not only in sex. A 16-year-old cannot join the Army, or sign a bank contract for example, let alone get married,” said Ms Omondi.
Constitutional lawyer Peter Wanyama described the planned change in the law through the Statute Law (Miscellaneous Amendment) Bill as unprocedural.
He said the right thing to do would be to bring the changes through a separate legislation so Kenyans can have ample time and an opportunity to interrogate the proposals.
“Changes to the Sexual Offences Act affect society in a big way and should therefore be accorded the attention they deserve,” said Mr Wanyama.
He explained that Statute Law (Miscellaneous Amendment) Bill is reserved for making minor changes and introducing amendments that are not controversial.
The list of amendments that are tackled under such Bills includes correcting clerical errors, referencing issues and spelling mistakes.
The Clerk of the National Assembly, Justin Bundi, made public the intended amendment through a newspaper notice that invited members of the public to submit any representations on the Bill.
The deadline for making submissions has been set at close of business on December 27, 2016.
The proposed amendment to the Sexual Offences Act was hidden in the depths of the newspaper notice, making it possible for it to pass unnoticed.
First reading
The Bill has gone through its first reading in the House and has been committed to the Committee on Justice and Legal Affairs for consideration.
Efforts to reach committee chairman Samuel Chepkonga for insight on proposed amendment were futile.
MPs will today hold a special sitting to discuss proposed changes to the law on use of technology in the General Election.
Mr Chepkonga is scheduled to introduce new clauses to the Elections Act allowing the Independent Electoral and Boundaries Commission (IEBC) to use other means of identifying voters.
The Statute Law (Miscellaneous Amendment) Bill 2016 also proposes changes to the Judicature Act, East African Community, the Probation of Offenders Act and the Income Tax Act.
The Probation of Offenders Act seeks to introduce the term ‘Cabinet Secretary’ and ‘Principal Secretary’ instead of a Minister and Permanent Secretary respectively.
The Income Tax Act (Cap 470) seeks to reinstate the introductory portion of an item in the third schedule which had been inadvertently omitted.
The Insurance Act (Cap 487) is also being amended to confer additional function to the authority of educating the public on the right to elect an underwriter of their choice and also to regulate bank insurance.
The Kenya Information and Communications Act (no 2 of 1998) is also being amended.
In August, judges called for a review of some clauses of the Sexual Offences Act dealing with minimum sentences.
The judges argued that they are tied by clauses in the law which give a minimum sentence to be imposed against an offender.
They said each case ought to be determined on its own merit and circumstances relating to it.
Lawyers too have been up in arms over the application of the Sexual Offences Act, arguing that it is biased against boys who have consensual sex with girls who are also minors.
The lawyers representing teenage boys are questioning the legality and morality of a law that criminalises males while protecting females.
