Author: Elizabeth Kemigisha
On 3 May 2021, Uganda’s Parliament passed the Sexual Offences Act, 2021. This Act – which has been 21 years in the making – can be applauded for increasing protection and redress to survivors of sex-related crimes. The majority of MPs supported the Bill and its core purpose of combating sexual violence and consolidating laws of sexual offences, providing for punishment of perpetrators of sexual offenses, providing for procedural and evidential requirements during trial of sexual offences and other related matters. Many of the MPs agreed that if passed the Bill would fill the gaps that exist in the current laws making the legal framework more adequate and aligned with the international human rights standards that Uganda ascribes to. However, the final version of the Bill which was passed falls short of these international standards for the protection of human rights – and the rights of women in particular – on various fronts, including in its limited definition of rape, its failure to recognise marital rape and the criminalisation of false sexual accusations.
When the Court of Appeal in Eliud Waweru Wambui v Republic Criminal Appeal No 102 of 2016, raised the issue of reducing the age of consent for adolescent, there was panic in the whole country. Everyone including leading renowned children rights advocates rejected this idea even without reading the judgment of the court. The judges in this case stated it is rather immature for adults to think that ‘teenagers and maturing adults, do not engage in, and often seek sexual activity with their eyes fully open’. The judges were of the opinion that even though teenagers might not have attained the age of majority, they may have ‘reached the age of discretion’. However, before this case, the High Court in CKW v Attorney General & Director of Public Prosecution stated that the offense of defilement under the Section 8 of the Sexual Offences Act is for the best interest of the child. In CKW case, unlike the Eliud Waweru the accused was a teenager like the victim. In fact, at the time of the offense occurring, both parties were sixteen years of age. The stark reality is that a consensual sexual relationship between two 16-year-olds is a criminal offense in Kenya. These draconian and puritanical laws are largely the product of a conservative political culture that has transformed the fight against child molestation into a full-blown war on teenage sexuality. We now live in a moral milieu so toxic and muddled that we lump together as “sex offenders” teenagers who send nude photos to each other with clergymen who rape toddlers. A first step toward reversing this madness — and actually protecting the health and safety of teenagers — would be to revise the age of consent downward to a threshold in accordance with those of other nations.