Adolescent sex should be de-criminalized

In Africa, teenage pregnancy has had a negative social and economic consequences, the most highly publicized stem from lost educational opportunities when pregnancy forces young women to leave school. In Kenya, sexual activity has been encouraged by the proliferation of mobile phones and the internet which propagates the use of electronic devices in communicating has encouraged youth to be more sexually promiscuous, no thanks to sexting, easy access to pornography as well as rapidly increasing knowledge explosion on the use of contraceptives.

In the recent past, Kenya has registered high prevalence rates of teenage pregnancy, with numbers as high as 13,000 every year according to the Population Studies Institute (PSI). Kilifi county alone had 100 pregnant Schoolgirls who sat for the 2018 Kenya Certificate of Secondary Education (KSCE) Exams. Other counties hardest hit by the menace include Narok, Homabay, West pokot and Tana River County. In Mount Kenya region, counties with somewhat high prevalence rate include, Meru at 20 percent, Laikipia at 19 percent, Nyandarua 10 percent and Muranga and Nyeri counties presenting the lowest rates at six and seven percent respectively.

During long holidays, teenagers have unlimited and unsupervised free time. Other than the usual tinkering with electronics, bumming around watching TV and engaging in other counter-productive behaviours, such as indulging in drugs and alcohol, teenagers quench their curiosity about sex. This has led to a good number of young people (minors) on the wrong side of the law, with many of them having to face prosecution charges on sexual related offence. 

There are two major policy positions: a punitive and a non-punitive approach. Most countries adopt the punitive approach including Kenya. The legislation does not explicitly criminalize consensual sexual conduct between adolescents, and this leaves a grey area to be filled in by social and cultural norms that perceive adolescent sexual conduct negatively. In Kenya, judges and magistrates find themselves in legal dilemma in regards to this issue, a situation that has led to contradictory decisions being arrived at. On such case were a minor was charged with sexual offence for having engaged in consensual sex with another minor, court observed that given that adolescents were below the age of 15, both of them had to be released. However, there is a problem with those who are above 15 years but are not yet 18, with prosecution pressing charges on the boy with sexual offence, whilst the girl is let Scott free. Jailing the teenage male ‘offender’ is an upfront to his rights and discrimination. In 1996 Kenya introduced a school re-entry policy that aimed to ensure a return to school for all pregnant girls soon after weaning their babies. There is no reason whatsoever on why we shouldn’t reform the law to decriminalise consensual sex among the adolescent as by doing so rights of both teens are upheld .

In Zimbabwe, a  High Court reviewed a  case of a boy of 17 years who had consensual sexual intercourse with his girlfriend of 15 years, and was consequently convicted of the offence of having sexual intercourse with a young person. Punitive approaches have been justified as necessary to curb harms to adolescents resulting from sexual conduct, including teenage pregnancies and sexual abuse. The issue of criminalization of adolescent consensual sexual conduct in age of consent laws has arisen in several courts in Southern Africa, and opinions have been divided.

The fundamental question then becomes, what ought to be done when two adolescent engages in consensual sex? As a society, it is time we had a candid and honest conversation on this issue. Whether to revise the age of consent law downwards or to decriminalise consensual sex between adolescents, however, it is a new jurisprudent development in the waiting. What we must accept is that its  unrealistic to assume that teenagers and maturing adults do not engage in sex especially in this day and age.

 To remedy the situation, a concerted effort by all stakeholders: the government, faith–based institutions and family unit is required to develop programmes that are comprehensive, age appropriate and sexually educating. After which it should be made available to the adolescent youth from as low as six years. Sex among the adolescents is a reality, and thus does not justify imprisonment term for the teen male offender as by doing so it’s by its self an encroachment into the rights of the child.