Chief Justice David Maraga has proposed that judges and magistrates should be left to deal with the minors who engage in consensual sex instead of lowering the consensual age to 16 or continuing to jail offenders.
This comes after the Court of Appeal proposed the age of consent be lowered to 16 years.
Three judges, Roselyn Nambuye, Daniel Musinga and Patrick Kiage, ruled that the country should consider changing the Sexual Offences Act, citing lengthy jail terms imposed on young men convicted of defilement.
Justice Maraga feared that the sexual offences system is skewed against the boy child.
Feeling sorry for young boys
He observed that it is common in Kenya to fill jails with teenage sex offenders who are male.
“This is one of the areas I have had serious difficulties with, the boys and girls are our children,” the Supreme Court judge said.
“I have no problem when a perpetrator is an old man, but when it comes to boys and girls between the age of say 17 and 20,” he added.
Under the Act, a person arrested for defiling a minor aged between 12 and 15 should be jailed for more than 20 years while those nabbed for having sex with minors between 16 and 18 years get 15 years minimum.
Challenges of maturing children
The Appeal Court judges said the country should discuss challenges of maturing children, morality, autonomy, protection of children and the need for proportionality in punishing sex pests.
They said the debate on lowering the age of sexual consent was long overdue as men were languishing in jail for sleeping with teens “who were willing to be and appeared to be adults”.
However, the proposal has been vehemently opposed by Supreme Court judge Njoki Ndung’u and appeal judge Hannah Okwengu who said lowering the age to 16 would “attract sex predators.”