Teens, rights groups challenge blanket sex ban

High Court Judge Bahati Mwamuye. [File, Standard]

The government on Tuesday clashed with human rights and children’s rights groups and three teenagers over whether the current blanket ban on sexual activity among minors should be lifted.

The Katiba Institute and the Centre for Reproductive Health told High Court Judge Bahati Mwamuye that Sections 8, 9, 11, and 43(4)(f) of the Sexual Offences Act are overly broad, effectively criminalising consensual sex activity and relationships between teens.

“While the State retains a legitimate and compelling mandate to prevent sexual abuse, exploitation and violence against children, it cannot pursue this objective through legislative provisions so broadly framed that they erase the essential distinction between harm and consensual, non-coercive, non-exploitative adolescent behaviour or turn the very children the law seeks to protect into offenders,” argued Martin Onyango, Prudence Mutiso and Malidzo Nyawa.

On the other hand, the Director of Public Prosecutions, the Attorney General, the Inspector General of Police and the Chief Magistrate’s Court argued that the matter had already been settled in a separate case involving a 16-year-old boy caught in a relationship with a peer.They maintained that the government’s interest in protecting minors from premature sexual activity was valid and aligned with the public interest.

“To allow the present petition to proceed would be to sanction a collateral attack on a final judgment of a court of competent jurisdiction. It would open the floodgates to endless litigation on the same legal questions, thereby undermining the authority of judicial decisions under Article 159 of the Constitution and eroding public confidence in the administration of justice,” responded Dan Weche.

Collateral attack

The case was filed by three minors, codenamed HSO, AMO and TA. They told the court that they, along with many other adolescents, are unfairly criminalised under the justice system for engaging in consensual and non-coercive sexual activity.AMO and TA are parents to two children. Both fell in love at 17, which led to TA becoming pregnant. She told the court that her stepfather disapproved and lodged a criminal complaint with the police.

According to TA, her partner should not have faced charges in the Makadara Law Court, as their relationship was mutual and they had happily begun a family together.

Lawyer Onyango argued that the Sexual Offences Act is drafted so broadly that minors have no legal right to consent to sex, even with peers.

He added that the blanket ban has wider consequences, noting that the government and parents are also failing to provide adolescents with safe relationship education.

“The experiences of the first, second and third petitioners show how the current legal framework leaves adolescents without safe or confidential ways to access sexual and reproductive health information and services. In each case, they were forced to navigate personal relationships, pregnancy and complex emotional realities without youth-responsive support,” argued Onyango.

Mutiso added that prosecuting teens for consensual sexual activity can cause lifelong psychological harm.