Does criminalisation of consensual sex between minors in Kenya violate the constitutional rights of children?

Abstract

The provisions of Section 8(1) and 11(1) of the Kenyan Sexual Offences Act of 2006 are framed in a manner that essentially criminalises factually consensual sexual relations between adolescents. This is premised on social constructions around children’s sexuality that influence how the law is framed. Most societies view children as innocent and non-sexual and thus in need of protection. However, this narrow perception fails to recognise children as right holders and denies them of their sexual rights. Sexual rights in themselves are not self-standing and do not bear an authoritative stand in international law but are linked to other rights that are already recognised in national laws and provided for under international human rights conventions. Notwithstanding all the instruments that protect and promote the rights of children on matters of sexuality, it is clear that the matter of children’s sexuality is a delicate subject because of the nature of children. Matters relating to the assessment of whether a child has the capacity to consent are not straightforward and the state has an arduous task of balancing protectionism versus self-determination by fixing age limits that are not too high or too low. Kenya’s population ratio of youth aged between 15 and 24 years stands at 20.3 per cent meaning that out of a population of 49.7 million, 10.1 million are youth. Therefore, for Kenya to achieve its development goals it must protect and harness the potential of its youth by recognising sexuality as an important component in the development stages of an adolescent.