FAMILY LAW RESEARCH PAPER

Course Name: Family Law.

Course Unit: SLS 3124.
Research Topic: Redefining the Term ‘Child’
in Family Law: Deliberations on the Age of
Consent.
By: Joy Kendi Kaburu
Table of Contents
Abstract ....................................................................................................................................... 2
I. Introduction .......................................................................................................................... 3
II. Defining Consent; A Jurisprudential and Anthropological View .................................... 3
III. The Experience in Kenya Concerning the Age of Consent ............................................. 5
IV. Emerging Issues Surrounding the Age of Consent .......................................................... 6
V. Changing the Age of Consent: Is it in the Best Interest of the Child? ................................. 8
VI. Recommendations ............................................................................................................ 9
VII. Conclusion........................................................................................................................ 9
Bibliography .............................................................................................................................. 10

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REDEFINING THE TERM ‘CHILD’ IN FAMILY LAW: DELIBERATIONS
ON THE AGE OF CONSENT.
Abstract
The term ‘child’ in Kenya is defined as anyone below the age of 18 years and the set age of consent
in Kenya right now is also 18 years. This is according to the Constitution of Kenya, Article 2601,
the Sexual Offences Act No. 3 of 2006,2 and the Children Act 2001, Article 2.3 These Acts were put
in place to ensure the safety and protection of our children from sexual predators who so rightly
will get their punishment, if they infringe on their rights and freedoms. The harrowing debate as
to whether the age of consent should be lowered is not in the best interests of the children. This is
and should be the center of this controversy; the question of ‘How best can we protect our
children’.
This essay sets out to show the reasons as to why the age of consent should not be lowered, but
rather should remain as it is. Not one person can step forward and speak as to whether a 14-year-
old or a 16-year-old has reached the age of maturity, nor can they say that they are at the age of
consent. With that said, this essay also sets out to propose recommendations to the education
sector, on how these children can be sensitized on this issue, as well as knowing that they should
never feel pressured into doing something that they do not want to do, or otherwise, a no is a no.
This is a tribute to the words of a world-renowned author, Chimamanda Ngozi Adichie, who
brought it out articulately in one of her books.4 I will also show how in retaining this position, it
will create a fair justice system and foster harmony in the society where it is clear that going
against this position is illegal and will be dealt with by the law accordingly.

1
Article 260, Constitution of Kenya (2010).
2
Sexual Offences Act No. 3 of 2006.
3
Article 2, Children Act (2001).
4
Ngozi C, ‘Dear Ijeawele, or a Feminist Manifesto in Fifteen Suggestions’, HarperCollins Publishers, 2017, 18.

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 I. Introduction
The conundrum of lowering the age of consent in Kenya can be dated back to March 2016, where
the Nairobi Court of Appeal clamored for the reconsideration of the age of consent, and were to
do this by re-examining the Sexual Offenses Act, No. 3 of 2006, herein, SOA. The National Gender
and Equality Commission (NGEC); a commission aimed at safeguarding the rights and freedoms
of all Kenyans with special focus to children, youth, women, persons living with disabilities, the
old and marginalized groups,5 came together with other stakeholders such as Government
Ministries, Universities, the Kenya Special Taskforce on children matters and other bodies to come
up with and present their submissions on the issue. The conclusion they came to was that the age
should not be lowered as it would negatively impact these children in terms of their education,
socially, psychologically and health wise as well. Moreover, they also figured that instead of
debating on whether the age should be lowered, deliberations and discussions should be held as to
how we can avert this crisis that results into sexual assaults. Then again, this has not stopped such
discussions from being tackled recently as some members of the judiciary are genuinely
considering this cause.
Is the lowering of the age of consent a valid case to be made or will by doing so, hurt the best
interests of the child? This is the question I intend to tackle as I look at five parts that I will use to
make my claim. Firstly, we will define consent and give the jurisprudential and anthropological
context to it. Secondly, we will look at the experience of Kenya concerning the age of consent;
here we will look at case laws. Thirdly, this essay will take on the emerging issues surrounding
the age of consent. Fourthly, we will tackle the main aim of this essay, that is; is changing the age
of consent in the best interest of the child? Here we will look at the social aspect of it. Lastly, I
will draw a conclusion and give my recommendations.

II. Defining Consent; A Jurisprudential and Anthropological View

The word consent is an umbrella term however, in this context it is defined as a permission or an
agreement expressed through volitional words and that both parties mutually understand each other
that they will engage in a sexual activity.6 What most people fail to understand is that consent can
be withdrawn at any time, as long as it is communicated, whether through actions or words.
Coupled up with that definition, on the legal perspective, Section 42 of the SOA7 states that “a
person consents if he or she agrees by choice, and has the freedom and capacity to make that
choice”. To that end, the rationale concerning the age of consent in Kenya is that minors are
incapable of giving consent. Because of this, there have been laws that have been set up to protect
this that we are calling ‘the best interests of the child’ so that they may not face sexual violence
such as defilement, sexual assault or rape, just off the top of my head. This is what should come
to mind when talking about consent.

5
National Gender and Equality Forum, ‘Minimum Age of Consent for Sex: Addressing the Dilemma’, 2019, 2.
6
The Collins Dictionary, 8th ed.
7
Section 42, Sexual Offences Act, (2006).

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A discussion that comes up when the topic of consent arises is the imbalance of power between
men and women. The types of sexual violence mentioned above is mostly as a result of gender
inequality, where men have more power over the women or girls.8 This problem has been there for
a very long time and is still present today because women are viewed as subordinate or the lesser
gender; that we have to be spoken for by the men. Similarly, the generation we are in today does
not put enough emphasis on these things and that is why a man will walk away scot-free because
“her dressing was enough invitation”. This type of mentality is why there is a high rate of women
getting rapped and ending up pregnant, despite whether they are of age or not. That said, the main
concern of this essay is to deal with a “child” who cannot consent. The law is clear on that the
minimum age of consent in 18 years and the SOA is strict on this. Any attempt to change the age
of consent will be detrimental to the child, as we will see when we discuss what the best interests
of the child entails.
In any case, in the eventuality that the minor factually gives consent without coercion and it is
proven as so, the law should be flexible and should be unprejudiced towards both parties,
especially the offender.9 An illustration on this is the controversial case of Martin Charo v
Republic,10 where a girl who was 14 years old and a man who was 10 years older had voluntary
sexual intercourse. He was convicted in the appeal case because the court was of the opinion that
despite the law on age of consent, a girl who voluntarily engages in sexual intercourse behaved
like a grown woman and therefore does not need the protection of the law. Though this decision
being legally wrong, the caveat that arises from this case and I think should apply to all others, is
that where the child behaves like an adult and willingly wants to engage in sexual activities, the
court must treat said child as a grown up who knows what she or he is doing. However, this does
not mean that they should be punished to the full extent of the law. That position is a fair one in
my opinion, but only where it is proven that there was no coercion.
Similarly, in Godfrey Kangaude’s chapter,11 he remarked on this saying;
“Constructing children as legally incapable of consenting to sexual activity when in fact they have
an evolving capacity to make certain decisions about their sexuality is not merely unfortunate. It
conjures limitations on the child’s enjoyment of sexual health and sexual rights… The
consequences of failure to support children is unwanted or unprotected sex, and the sequelae are
common knowledge; unwanted pregnancies, unsafe abortions and sexually-transmitted infections,
including HIV”.
Partially in agreement with him and without contradicting myself, such special cases though
infrequent, should be handled with care and unbiasedness. However, I do not think that setting an

8
National Gender and Equality Forum, ‘Minimum Age of Consent for Sex: Addressing the Dilemma’, 2019, 2.
9
Kangaude G, ‘Adolescent Sex and Defilement in Malawi Law and Society’, 17 African Human Rights Law
Journal, 2017, 527.
10
Martin Charo v Republic, [2015] eKLR.
11
Kangaude G, ‘Adolescent Sex and Defilement in Malawi Law and Society’, 527.

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age of consent should be viewed as “an operation of power or power to control”12 the child by the
adults as he states in his chapter, neither should it be looked at as limiting the child’s sexual health
and rights. I do not deny that everyone, including a child have these rights, the question comes up
at the stage or time of it because as we all know, there is a time for everything. It should rather be
understood from the view of the best interest of the child as we as adults who are looking after
them, have nothing to gain from it other than being satisfied at the way they have been brought up
and protected from the stress and pressure that comes with sexual activities and rights before time.
Therefore, my stance still stands.

III. The Experience in Kenya Concerning the Age of Consent

Kenya’s experience has been a rather bumpy one. Aforementioned, this discussion dates back to
2016, where Justice Chitembwe gave his ruling in the Martin Charo case. This ruling received so
much backlash because “it set a dangerous precedent assuming that girls who consent to sex before
age 18 should not be afforded special protection”.13 Like this, there have been other controversial
cases that have that have been dealt with by the judiciary, that we shall look at, which have sparked
roaring debates on what should be followed. Consequently, The National Gender and Equality
Commission (NGEC) came up with a report that maintained the position that has been held and
remained; that the minimum age of consent should remain 18 years and its objective is to protect
the child and adolescents from forms of sexual abuse that will hinder their development and
enjoyment of their rights.
Previously mentioned, there are some statutes that aid this law on the minimum age for consent
which are; The Constitution of Kenya, 2010: The Bill of Rights14 in Articles 27, 28, and 50, Sexual
Offences Act 200615 such as Sections 8, 9, 11, 12, 14, 15 and 16, The Children Act, 200116 Section
15 which talks about protecting children from all forms of sexual exploitation as well as Section 3
to 22 talks about the rights and freedoms that a child should enjoy, and lastly Protection Against
Domestic Violence Act, 201517 where Section 3 talks about protection of the child against
defilement and sexual abuse. These are only but some of the provisions that discuss the child and
their well-being. Along with the statutes, there are key case law that will help us understand
Kenya’s experience with the age of consent. These cases have informed the debate on this issue it
would be important to highlight them.
The first key one is the Appeal case of Eliud Waweru Wambui v Republic18 which set the ball
rolling on the discussion of re-examining the SOA, No. 3 of 2006 (the Act) with regards to the age
of consent. Their basis was that this Act has unfair consequences such as lengthy jail terms which

12
Kangaude G, ‘Adolescent Sex and Defilement in Malawi Law and Society’, 532.
13
14
The Constitution of Kenya (2010).
15
The Sexual Offences Act of 2006.
16
The Children Act (2001).
17
Protection Against Domestic Violence Act, (2015).
18
Eliud Waweru Wambui v Republic [2016], eKLR.

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can lead to harm, prejudice and injustices. The Court of Appeal not only saw held this view in this
case, but many others as well and is why the proposed to re-examine the Act. The judges were also
of the notion that the age of consent to be lowered from 18 years to 16 years with regards to the
challenges of maturity and autonomy of children. Of course, this has not been followed through
with because the age of consent is still 18 years, rightly so, but this provides us with some insight
and reasoning as to why it would have been changed.
Bonu v Republic19 is another important case where the court held that no matter how willing the
minor maybe, he or she cannot consent to sexual activities and that if breached, amounts to an
offence. Now this being a 2010 case, the case earlier discussed of Martin Charo, being set in 2015,
somehow debunks this one. The Martin Charo case talks about if a child exerts themselves and
behaves like a grown up, they will be treated as such by the law. Therefore, it adds the aspect of
being willing whereas the Bonu case does not care if the child is willing or not. I still think it is
important to prove beyond reasonable doubt the child’s state of mind was not interfered with
during the decision making.
Lastly, we look at the case of CKW v Attorney General and the Director Public Prosecution.20
The applicant attempted to question the validity of Section 8(1) of the SOA21 and declare it
unconstitutional saying that it is an offence for consensual sexual relations between adolescents
and yet it is not an offence for consensual sexual relations between adults, hence discriminating
the adolescents. This is an emerging issue that we are yet to tackle in the next part of my essay
however, the court found this petition without merit because no proof was provided as to the
alleged discriminatory nature of the law.
All these cases mentioned above and more not mentioned have set the course on the age of consent
in Kenya. There are so many questions surrounding this debate and the courts have done their best
to come up with satisfactory judgements that are in line with the law while considering social
norms. Doing so, they are uplifting and protecting the child’s rights and interest that they may get
justice when these are not respected. So far, Kenya has handled itself well with this topic but there
are still some areas that they can improve on, and we shall see how in the recommendations.

IV. Emerging Issues Surrounding the Age of Consent

Previously mentioned, the debate of the criminalization of teenage sex (teenage meaning persons
under 18 years) and the punishment for the males have been an underpinning discussion that comes
up when the age of consent is discussed.22 Why is it that adult consensual sexual relations are not
criminalized while teenage consensual sexual relations are? Or, why is it that we are the similar in
age and offense and yet I as the male is getting a higher punishment? These are areas that are in
need of reform by Kenya. When these questions are asked, it becomes another question of whether

19
Bonu v Republic [2010] eKLR.
20
CKW v Attorney General and the Director Public Prosecution [2013] eKLR.
21
Section 8(1) of the Sexual Offences Act (2006).
22
Strout J and Vasudevan D and Shah R, ‘Protecting Youth from Themselves: The Overcriminalization of
Consensual Sexual Behavior between Adolescents’ 40 Child Legal Rights Journal, 2020, 1.

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the law is engaging in double standards when handling children or the presumption that only the
minor male who engages in sexual activities with a minor female is an adult, and therefore should
face the harsh hand of the law.23
Looking into the first paradox that is teenage sex, we invoke the mind of Henry Okwatch where
he talks about this issue in his piece. He talks about how the age of consent in Kenya is posing a
problem to the enjoyment of teenagers right to reproductive health care,24 just like Godfrey
Kangaude as we saw earlier. With this, he brings up the South African case; Teddy Bear Case25,
whether the court held that if sexual relations between teenagers was excessively supervised by
the law, then this would cause them to hide and do them in secret, hence causing risks of unhealthy
sexual practices. Another mind shares his view, Olsen, where the writer thinks that the state should
play a minimal role in this area by making flexible their laws. 26 Although not quite seeing eye to
eye with Okwatch’s view, I lean more towards Olsen because the rigidity of the laws is what brings
up the second problem, the harshness of the punishment towards the minor males.
This paradox is betrayed by laws that appears to protect the female while leaving the male out in
the cold and this is because of the social construct where it is men who do the seeking of sexual
favors and therefore women should be under the protection of the law.27 From this, men end up
drawing the short end of the stick, especially minor men. Hence this is why I agree with Olsen,
that the state should play a small role in this, such that they are not overbearing but still perform
their role to protect the child. As to whether it should be criminalized or not, the state needs to sit
down and discuss this fully. In my opinion, the decision sought to be upheld in the Martin Charo
case should be given another chance and used in such cases to do with teenage consensual sexual
relations, where if these teenagers are behaving like adults and willingly want to engage in sexual
relations, the law should treat them as such and lay down a flexible hand on the case. Despite this,
it should also be clear when the court is dealing with a case of defilement, whether it is by a minor
male or an adult male, or a case of consensual sexual relations. Injustice should not be fostered
where a minor male is serving a long sentence for having consensual sexual relations with a girl
whose consent is invalidated because they are below the age of consent. The two should not be
mixed up because they are two very different offences, one deserving of a lesser punishment than
the other. The court will also need to consider the best interest of the child in such cases. All this
will remove any doubt as to whether there is an imbalance of the law or any gender-biasness
concerning this issue.

23
Akello E, ‘Examining the Minimum Age for Sexual Consent Under the Kenyan Criminal Justice System’,
University of Nairobi, 2021, 10.
24
Okwatch H, ‘The Problematic Jurisprudence on the Law of Defilement of Adolescents in Kenya’ Strathmore Law
Review, 2019.
25
Teddy Bear Clinic v Minister of Justice [2013] CCSA.
26
Russell C and Kathryn C, ‘The Paradox of Statutory Rape’, Indiana Law Journal, 2012, 87.
27
Russell C and Kathryn C, ‘The Paradox of Statutory Rape’, Indiana Law Journal, 2012, 87.

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 V. Changing the Age of Consent: Is it in the Best Interest of the Child?
The principle of the ‘best interest of the child’ refers to all that is considered to do with actions
concerning children, that mostly prioritizes the child’s growth and development, their essential
needs as well as the child’s welfare and safety.28 The law clamors that where there is any decision
involving the child, it must be taken into account the principal result of the decision of the child
concerned.29 However, as a right, it clamors for the child to be treated in a way that protects them
and assures their safety, as well as acting to promote their desires and well-being, which is the
underpinning of this principle.30 With this definition and as we have seen above, the law does not
act in the best interest of the child, when the boy child is made the villain and the girl child the
victim during a case of consensual sexual activities. The law should work against all forms of
discrimination, direct or indirect, against the child in relation to this matter. Then again, this does
not mean that the age of consent should be changed, but should remain as is to protect children
from the stresses that associate with sexual relations.
Letting the age of consent stay as is will secure the child’s right to health. 31 This comes in many
forms such as physical, mental and psychological. It matters not if it is consensual or
nonconsensual because it will still cause the child these effects. Children should be sensitized about
the dangers of sexual relations and what they are getting themselves into by consenting as early as
now because these effects are long lasting. For instance, regarding the physical health of the child
include Sexually Transmitted Diseases (STIs) and Human Immunodeficiency Virus/Acquired
Immunodeficiency Syndrome (HIV/AIDS) which are common and rampant in sexual relations
between minors, as well as other diseases.32 Therefore, instead of trying so hard to catch them and
punish them, a solution should be made concerning sexual education for these children in schools
and on the streets. Mental and psychological health go together where the child is traumatized in
cases of child abuse and defilement.
Another advantage of letting the age of consent stay as is and that will be in the best interest of the
child is that it will protect the social development of the child. Consensual or nonconsensual sexual
relations will still be detrimental to the social development of the child because of the effects that
come with it. At that age, the child is not ready to go through the task of motherhood or fatherhood.
It would mean that they would have to drop out of school and start adulthood early, when they are
supposed to be enjoying their childhood. As much as minors nowadays are consenting to sexual
relations and may feel like adults during the decision, they are most definitely not ready for what
comes after, both mentally and physically, regarding the body of a growing child, not to mention
the financial aspects that are tied to it. This would hinder the social development of the child and

28
Children’s Bureau, ‘Determining the Best Interest of the Child’, —
<https://www.childwelfare.gov/pubpdfs/best_interest.pdf> 2020, 2.
29
Implementation Handbook for the Convention on the Rights of the Child, 3d revised edition, UNICEF 2007.
30
Deusen C, 'The Best Interest of the Child and the Law', 18 Pepperdine Law Review, 417, 1991.
31
Article 24, Convention on the Rights of the Child.
32
Seymore M, 'Sixteen and Pregnant: Minors' Consent in Abortion and Adoption', 25 Yale Journal of Law and
Feminism, 2013, 99.

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 would be against their best interest because as the child’s peers are learning and playing, the child
in question is going through adulthood, an oxymoron.
These are only but a few examples as to how the best interest of the child would be upheld if the
age of consent is left to the age of 18 years. It would do more harm than good if it were to be
changed because “that is the world we are heading into”.

VI. Recommendations
South Africa provides some lessons that Kenya can learn when it comes to these matters.
Concerning the paradox of teenage sexual relations, South Africa has created provisions for that,
where they provide for close-in-age exceptions, also known as the Romeo and Juliet clause, and
defenses.33 Despite agreeing that the age of consent should not be change, I recommend a legal
reform where this provision should be looked into and implemented, because of how rampant the
cases are, as much we would like otherwise. This will protect these teenagers from the harshness
of the law, where they are being punished severely for engaging in consensual sexual relations. It
will be in the best interest of the child for this law to exist and separate them from other cases that
do call for the harshness of the law such as rape and defilement. Consequently, for this sole reason,
I think the SOA should be re-examined so that we can see how to fit this provision in. In the case
of Evans Wanjala Siibi v Republic,34 the Court of Appeal made reference to the Teddy Bear Case
while complaining of the fallibility and silence of the SOA in dealing with teenage sexual
activities. With this, the provision should also be clear on how the teenagers engaging in sexual
relations should be punished of course taking into account the consensual or nonconsensual nature
of the case that will be dealt with.
Secondly, I make a recommendation to the social and justice sector as well as the education sector,
where the boys and girls should be provided with rehabilitation services and in addition, sexual
education because there is a lack in the two. Children lack the facts about sexual activities and that
is why they find themselves saying that they are ready. 35 However, they need to be educated on
the benefits of delaying sexual activities and that they should have correct information in order for
them to make informed decisions about their sexuality as they transition from childhood to
adulthood.

VII. Conclusion
The legal framework in Kenya provides that a child is incapable of giving consent because they
are unable to fully grasp the full scope of the decision ahead of them, as well as them not having
developed physically, mentally and socially.36 Hence is why the age of consent should remain 18
years. Nonetheless, we have recognized the contradiction that is teenage consensual sex and what

33
James S, ‘Romeo and Juliet Were Sex Offenders: An Analysis of the Age of Consent and a Call for Reform’ 78
University of Missouri-Kansas City Law Review, 2009, 0.
34
Evans Wanjala Siibi v Republic [2018] eKLR.
35
National Gender and Equality Forum, ‘Minimum Age of Consent for Sex: Addressing the Dilemma’, 2019, 28.
36

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it means for children. As much as it should remain criminalized, tenets should be provided for
when it does happen, such as how it should be dealt with in general, the close-in-age defense and
the punishment awarded.
All things considered, lowering the age of consent does more harm than good as we have seen.
There definitely will be further discussions on this matter, though my only prayer is that gender
equality and children’s rights are kept in mind as they are taking place for the best interest of the
child.

Bibliography
Legislation
1. The Constitution of Kenya of 2010.
2. Sexual Offences Act No. 3 of 2006.
3. Children Act of 2001.
4. Protection Against Domestic Violence Act of 2015.
5. Convention on the Rights of the Child (1998).

Book
1. Ngozi C, ‘Dear Ijeawele, or a Feminist Manifesto in Fifteen Suggestions’, HarperCollins
Publishers, 2017.

Journal articles
1. Kangaude G, ‘Adolescent Sex and Defilement in Malawi Law and Society’, 17 African
Human Rights Law Journal, 2017.
2. Strout J and Vasudevan D and Shah R, ‘Protecting Youth from Themselves: The
Overcriminalization of Consensual Sexual Behavior between Adolescents’ 40 Child Legal
Rights Journal, 2020.
3. Okwatch H, ‘The Problematic Jurisprudence on the Law of Defilement of Adolescents in
Kenya’ Strathmore Law Review, 2019.
4. Russell C and Kathryn C, ‘The Paradox of Statutory Rape’, Indiana Law Journal, 2012.
5. Deusen C, 'The Best Interest of the Child and the Law', 18 Pepperdine Law Review,
1991.
6. Seymore M, 'Sixteen and Pregnant: Minors' Consent in Abortion and Adoption', 25 Yale
Journal of Law and Feminism, 2013.
7. James S, ‘Romeo and Juliet Were Sex Offenders: An Analysis of the Age of Consent and
a Call for Reform’ 78 University of Missouri-Kansas City Law Review, 2009.
List of cases
1. Martin Charo v Republic, [2015] eKLR.
2. Eliud Waweru Wambui v Republic [2016], eKLR.
3. Bonu v Republic [2010] eKLR.
4. CKW v Attorney General and the Director Public Prosecution [2013] eKLR.

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 5. Teddy Bear Clinic v Minister of Justice [2013] CCSA.
6. Evans Wanjala Siibi v Republic [2018] eKLR.

Report
1. National Gender and Equality Forum, ‘Minimum Age of Consent for Sex: Addressing the
Dilemma’, 2019.
2. Children’s Bureau, ‘Determining the Best Interest of the Child’, —
<https://www.childwelfare.gov/pubpdfs/best_interest.pdf> 2020.
3. Implementation Handbook for the Convention on the Rights of the Child, 3d revised
edition, UNICEF 2007.
Dissertation
1. Akello E, ‘Examining the Minimum Age for Sexual Consent Under the Kenyan Criminal
Justice System’, Published, University of Nairobi, 2021.

Dictionary
1. The Collins Dictionary, 8th ed.

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