The usual practice has been to charge the boy with defilement and to treat the girl as the complainant
Fourteen-year-old Valerie Bosibori and 16-year-old Ian Okwach were neighbours. Bosibori lived in Ayani Estate while Okwach lived in Kibera.
Bosi, as friends called her, were well off, but Okwach’s family struggled to make ends meet. Either way, they enjoyed each other’s company, especially when Okwach would come to Bosi’s estate to play with other children.
In the usual, teenage style, they were fixed up with friends, who kept insisting that they looked good together, and everything started out with exchanging love-notes.
The relationship blossomed and soon they were secretly meeting after school, just the two of them. The visits became frequent and their ‘love’ grew stronger, not until Bosi’s mother stumbled upon one of their love notes in her bag. Furious and agitated, Bosi’s mother still in denial, declared that her daughter must have been raped by the ‘slum’ boy and filed a case against her daughter’s lover.
Okwach was arrested, while Bosi was placed under house arrest by her parents. The boy’s family spent three months going in and out of court until he was eventually let off. Luckily for them, the charges didn’t hold up, but that incident spelled the end of the young couple’s love story.
Peter Kimani Agesa on the other hand, wasn’t so lucky. At 17 years on10th August 2011, he was sentenced by an Eldoret court to 15 years in prison. His offence? Defilement of a 16-year-old girl.
When it comes to issues of sex, we seem to stick our heads in the sand, especially when our children and teenagers are involved. Children should not be having sex, but the reality is many of them are.
Who should bear the brunt in all this? Teenage love can be a sure ticket to prison and courtroom trials for adolescent boys who engage in pre-marital sex according to the law.
Under the well-meaning Sexual Offences Act of 2006, the punishment for sexual offences is strict, with special court procedures favouring the victim. However, the usual practice has been to charge the boy with defilement and to treat the girl as the complainant, particularly where she is younger than the boy.
Lenson Njogu of Legal Resources Foundation says in most cases, both the victim and the accused are underage. The girl doesn’t wish to pursue the case, because she says it was consensual. It’s the parents who insist that their child was defiled.
“We waste a lot of tax money pursuing such cases that don’t reach conviction stage. These sexual offenses in most cases get overturned because the complainant never wanted to pursue the case in the first place,” says Njogu adding, “where the accused is actually convicted, and if you look at it in a legal point of view, the level of punishment given is 12 to 15 years and in this case to a 16-year-old is punitive,” he says.
And this is where the proposed idea of sex consensual age reduction to 16 years came about. Njogu explains that unlike what many believe, calling to have the age reviewed from 18 years was to largely protect the boy child. People misinterpreted the law; truth is it wasn’t meant to give room for rape and perverts taking advantage of young girls.
“The consensual age for sexual engagement shouldn’t cushion pedophiles, it’s all in context with where the boy is underage to ensure subtle punishment,” he says.
“While there are different takes on what the age of consent should be, we should acknowledge the fact that our adolescents are sexually active after 14 years,” says Syviha Mulengya, a marriage counsellor.
She says that 16 to18 years is the most complicated age group, and most cases of consensual sex pertain to this age bracket. There needs to be a massive effort on part of the government and NGOs to provide youngsters with sex education, say experts.
“Sex education ought to start before puberty sets in. Youngsters should be told what is sex, how to avoid getting pregnant and its possible legal fall-outs. They ought to know and understand their bodies and the changes that adolescence causes,” Mulengya says.