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For decades, Kenya's Sexual Offences Act approached adolescent sexuality through absolute criminalisation. [Courtesy]
A landmark High Court ruling by Justice Bahati Mwamuye on consensual sexual relationships between adolescents has done more than test criminal law. It has forced the country to confront the tension between African moral values, constitutional rights, child protection, religion, public health and the realities of Kenyan youth.
At the heart of the judgment is the question; should every consensual sexual relationship between adolescents automatically be treated as a criminal offence? For decades, Kenya's Sexual Offences Act approached adolescent sexuality through absolute criminalisation. Because anyone below 18 cannot legally consent, sexual relations involving minors were treated as defilement regardless of context. The High Court has now challenged that absolutism.
Mwamuye ruled that blanket criminalisation of consensual, close-in-age adolescent relationships may violate constitutional principles of dignity, equality, proportionality, privacy and the best interests of the child. The court drew a clear line between predatory sexual exploitation and consensual peer relationships. It questioned cases where two teenagers are both branded criminals, or where the boy is prosecuted despite lack of coercion, violence or manipulation.
