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The People Daily reported that on November 10, a Mombasa court acquitted a 17-year-old youth who had been charged with defiling and impregnating his 15-year-old girlfriend.

Senior Principal Magistrate Vincent Adet said prosecuting the boy alone, over a juvenile love affair, was punitive and discriminatory. He stated that police and prosecutors in such cases should view the minors as equal victims of the offense of defilement instead of targeting the boy.

This, in my opinion, is a step in the right direction towards safeguarding the best interests of the boy child in ‘Romeo and Juliet’ cases in Kenya.

 ‘Romeo and Juliet’ cases are non-violent sexual relationships between teenagers or minors. Article 53 (2) of the Constitution and Section 4(2) of the Children’s Act require that the best interests of the child be a primary, if not paramount, consideration in every decision concerning the child, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities, or legislative bodies.

 Male child offenders in defilement cases have not always been protected by the BIC principle.

Previously in Petition 6 of 2013 (CKW v Attorney General and another), which was a defilement case involving two minors who had been dating, the boy, 16, was charged and adjudicated as delinquent for having sex with his girlfriend of the same age contrary to Section 8 (1) as Read with Section 8 (4) of the Sexual Offences Act.

The boy appealed and argued that the sex was consensual and that he had been discriminated against contrary to the provisions of the Children’s Act. The Appellant complained about being held in custody for a long time during investigations, and his education was discontinued, which is against the best interest of any child. This case involved the interests of two minors, and the question before the court was which minor’s interests were to be safeguarded. There was also a question of whether there could be consensual sexual activity between children and how that could be determined.

In my opinion, it was against the appellant’s best interests to be discriminated against by the criminal justice system vis-à-vis the girl’s best interests. Could it not be said that the two defiled each other, as has been the decision in the South African Teddy Bear Clinic appeal case?

In this case, the court observed that when two teens engaged in sexual activity, they were both guilty of statutorily raping each other. The Constitutional Court of South Africa held that sections of the Sexual Offences Act that prescribed criminal liability for sexual offenses on adolescent children under 16 years of age are not enforceable.

In the CKW appeal case, the best interests of the child principle, in my opinion, was not properly constructed by the court to protect the boy from the force of the Sexual Offences Act.  The court held that “In Kenya, the law does not distinguish between the girl and the boy in Section 8 of the Sexual Offences Act. In effect, the law, as enacted, does not discriminate.”

This reasoning failed to consider that in a defilement case between two heterosexual minors, the boy is most likely to perform the act of penetration. Section 8 (1) of the Sexual Offences Act provides that: “A person who commits an act which causes penetration with a child is guilty of an offense termed defilement.”

Chief Justice Martha Koome, while serving as the Court of Appeal Judge and Chairperson of the National Council on the Administration of Justice special task force on children’s matters, had observed that “instead of sentencing Romeo and Juliet, we can now refer such child offenders to probation, rehabilitation, or reducing their sentences, depending on the circumstance of each case”.

I am opposed to the criminalisation of non-violent and ‘consensual’ sexual relationships between minors and, therefore, do applaud Senior Principal Magistrate Adet’s decision not to punish ‘Romeo’ in this case.

 — Edwin Gakunga is an IP expert at the Lawyers Hub, Kenya