Author: William Aseka
Human Rights Lawyer
When the Court of Appeal in Eliud Waweru Wambui v Republic Criminal Appeal No 102 of 2016, raised the issue of reducing the age of consent for adolescent, there was panic in the whole country. Everyone including leading renowned children rights advocates rejected this idea even without reading the judgment of the court. The judges in this case stated it is rather immature for adults to think that ‘teenagers and maturing adults, do not engage in, and often seek sexual activity with their eyes fully open’. The judges were of the opinion that even though teenagers might not have attained the age of majority, they may have ‘reached the age of discretion’. However, before this case, the High Court in CKW v Attorney General & Director of Public Prosecution stated that the offense of defilement under the Section 8 of the Sexual Offences Act is for the best interest of the child. In CKW case, unlike the Eliud Waweru the accused was a teenager like the victim. In fact, at the time of the offense occurring, both parties were sixteen years of age. The stark reality is that a consensual sexual relationship between two 16-year-olds is a criminal offense in Kenya. These draconian and puritanical laws are largely the product of a conservative political culture that has transformed the fight against child molestation into a full-blown war on teenage sexuality. We now live in a moral milieu so toxic and muddled that we lump together as “sex offenders” teenagers who send nude photos to each other with clergymen who rape toddlers. A first step toward reversing this madness — and actually protecting the health and safety of teenagers — would be to revise the age of consent downward to a threshold in accordance with those of other nations.
Different countries have reduced the age of consent. For instance, Great Britain, after considerable national debate, chose 16 at its magic number in 2003, although a minority of liberal Britons, led by gay rights activist Peter Tatchell, continue to push for a cut-off at 14 years. In 2008, Canada has also settled upon 16. French law sets the age of majority, in matters of romance, at 15. Other countries like Belgium (16), Denmark (15), Germany (14-16), Greece (15), Holland (16), Italy (14), Norway (16) and Sweden (15). Similarly, different African countries have lowered the age of consent. Nigeria at 11 is lowest, while countries like Ghana (16), Zambia (16), Zimbabwe (16), Comoros (13), Burkina Faso (13) Alegria (16), Guinea Bissau (16), and South Africa (16) have a lowered the age of consent. In fact, out of 54 African countries, only 23 have 18 years as age of consent. The list is not exhaustive, but importantly, the idea of lowering age of consent is not a western idea as majority of Kenyans are made to believe. In addition, it is not a way to allow pedophiles to thrive, rather it is a way of embracing teenage sexuality.
The average of first sexual intercourse remains well below 18 in Kenya. A recent report revealed that there were over 8300 adolescent pregnancies in Makueni in 2018 alone. Furthermore, media reports during last year’s national exams indicated that majority of female students sat their exams while pregnant. Additionally, when it comes to older teens, it is not at all clear why safe sexual relationships should be deterred. If a 16-year-old can enjoy sex responsibly — using birth control, taking measures to prevent the spread of disease — and he or she wishes to add sexual pleasure to the rich tapestry of adolescent life, why shouldn’t we encourage that individual to do so?
The purpose of “age of consent” statutes is presumably to prevent the exploitation of children who are not yet mature enough to make wise decisions or who do not understand the implications and consequences of sex. Of course, one could apply that same reasoning to many other potentially-corrupting activities — attending church or synagogue, for example. Yet, nobody argues we should shield children from religion until they reach 18 and are thus old enough to understand the implications and consequences of religious practice. Another justification for age-of-consent laws is that the sort of adults who prey upon young children sexually are also likely to harm them in other ways, including violently — to cover up their deeds, if for no other reason. These concerns for the safety and welfare of minors justify legal regulation, but only up to a point. A sixteen year old who asks a seventeen year old on a date poses little threat to commonweal — even if that date ends in bed. Statutes criminalising such behavior are far more likely to harm teenagers than to help them — whether by denying them access to necessary information, deterring them from sharing their experiences with teachers and counselors for fear that they or their partners will be reported to authorities, or driving them to have sex in parked cars and dark alleys rather than safe, warm bedrooms.
The Christian right and its political allies have similarly co-opted efforts to crack down on child pornography as part of their drive to suppress teenage sexuality. Child pornography statutes, which were initially designed to prevent predators from exploiting children, are now increasingly being used to prosecute or intimidate teenagers who receive sexually explicit photos of their boyfriends or girlfriends. The problem is not with these teenagers. The problem is with the statutes. While sexual images of 16- and 17 year old may of course be used inappropriately — as may those of adults, for that matter — the individuals who should be punished are those offenders who misuse these images, not the teenagers who take them or the romantic partners who savor them. Exploitation is wrong. Neither sex nor nudity are inherently wrong or inherently exploitative. Alas, we appear to have forgotten how to tell the difference.
Teenagers are smart. They understand that sex can be pleasurable and that it can enhance the intimacy of their relationships. Telling them otherwise — by insisting, for example, that “sex is for adults only” — defies their lived reality. We should instead be emphasising safe sex practices, open communication, and gender equality. We should not tolerate, for example, any double standard that winks at teenage boys for having multiple partners but disparages girls who do so. We should take a warning from the old joke: What do you call teenagers who receive abstinence-only sex education? Answer: Mothers and fathers. I look forward to the day when those adults who preach an anti-sex philosophy to teenagers become as unpopular as the teens who embrace it.
That is not to say that some teenagers won’t choose to remain celibate. I cannot imagine why they would, but I respect their right to do so. However, those 16- and 17-year-olds who want to indulge in one of life’s great pleasures should not have to worry about the long arm of the law coming after them or their partners. Even more important, our society needs an open debate on this question. For far too long, those progressive voices who would bring common sense to the issues of teenage sexuality have been afraid to speak out for fear of being branded sympathetic to pedophiles and sex predators. The reality is that a reasonably lower age of consent, and a frank national discussion of adolescent sexuality, would serve the interests of the very minors that current laws are supposedly trying to protect. Pro-sex is Pro-safety. Conservative parents are certainly entitled to encourage their teenage daughters to keep their legs crossed, much as they may tell their sons that masturbation causes blindness. What they do not have a right to do is to lock the rest of our society in a chastity belt by fighting a war on sexuality under the specious guise of protecting teens from themselves.
About the Author:
William Aseka is a human rights lawyer with a keen interest in minority rights.
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