Stacie Manani
November: the season of the year that has majority of Kenya’s teenagers burrowing deeper into piles upon piles of books as they sit their national exams. As educational practice for several decades now, there is nothing particularly spectacular about these exams. However, the distinguishing factor about 2018’s exam period was the abnormally large number of young girls sitting their exams while expectant.
This year, Kilifi County reported the highest number of teenage pregnancies among girls aged between 15 and 19 years. According to Kilifi County Children Affairs Coordinator George Migosi, there were as many as 3,134 cases of teenage pregnancies in Kilifi North Sub-county, 2,861 cases in Magarini and 2,180 cases in Kaloleni. In addition, Kilifi South and Malindi reported 1,771 cases each, while Ganze and Rabai reported 1,362 and 545 cases respectively. Other than these cases, there were an additional 290 cases reported among girls aged between 10 and 14 years.[i] In one county alone, there were close to 13,000 reported teenage pregnancies, many of whom were sitting their national exams.
A number of the girls that were interviewed regarding teenage pregnancies would aver that the persons behind their pregnancies were either men under whose care they were placed or their very own peers,[ii] with many of them claiming that the pregnancy was the result of the financial security they sought from their 'lovers'.
It is quite apparent from these interviews that the parties involved are not aware of the legal repercussions that come with engaging in sexual activities with persons under the age of 18 years. A quick perusal through the Sexual Offences Act (the Act) sheds some much needed perspective on the gravity of the situation. Section 8 of the Act sets out provisions for defilement, which involves sexual intercourse with a child. In the Kenyan jurisdiction, under the Children’s Act, a child is any person under the age of 18 years and is incapable of giving consent under Kenyan law. The defense that the perpetrator and the victim were romantically involved is mute and fails to oust the illegality of the act.
Taking the above into consideration, it is prudent for adults to refrain entirely from having romantic relationships with minors as they will be the ones to bear the legal brunt of the relationship, regardless of whether they were forceful or ‘consensual’. The penalties are too steep a price to pay even in the name of love.
The punitive measures to taken against a person found guilty of defilement are stipulated under Section 8 of the Act. These are:
Life imprisonment if the victim is aged 11 years or less;
Imprisonment for not less than 20 years if the victim is aged between 12 and 15 years, and;
Imprisonment for not less than 15 years if the victim is between the ages of 16 and 18 years.
At sub-section 7, it is clear that even those under the age of 18 years found guilty of the offence of defilement will not escape liability.
Unfortunate for young boys engaging in these sexual activities with their peers is that, in practice, the court is more favourable towards their female counterparts. Take a hypothetical situation for instance: Tom, a 14-year-old recent Primary School graduate and Susan, a 17-year-old Form Three student, become quite friendly with each other one August, while Susan is on holiday. Susan takes it upon herself to ‘teach Tom a few things in the bedroom’. Susan eventually gets pregnant and her parents, quite inaccurately so, report Tom to the authorities claiming the rape of their daughter, Susan. According to previous judgements in court, it is highly likely that Tom will be found guilty of defilement and consequently convicted of the same.
This was the conclusion in the case of POO (A minor) v Director of Public Prosecutions & Another. In the Magistrates Court, the appellant (POO), who was 16 years old at the time, was charged and subsequently convicted of defilement of a 17-year-old girl upon his own plea of guilty. He was sentenced to 15 years imprisonment. Aggrieved by this, he appealed to the High Court, claiming that he was confused and intimidated during the reading of the charge sheet. Fortunately for him, Justice Makau - the High Court judge - found in favour of the appellant, stating that he was discriminated on the basis of gender. He further stated that in such instances, it would only be fair that both the girl and boy are charged with defilement of each other and should receive equal sentencing.
You probably weren’t aware that persons under the age of 18 years could also be held liable, did you? And I bet it is even more dumbfounding that it does not matter whether or not the boy is younger than the girl, right? You are probably not the only one that is unaware of this. Comment down below your thoughts and suggestions with regard to the matter. How can we do better for our young girls and boys as a nation?
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