This was a key part of my research during my final year in campus. There having been no amendments in the Sexual Offenses Act, this article is thus still viable and relevant. Any suggestions on the same are encouraged at the chat box
1.0. INTRODUCTION
The Sexual Offences Act is a legislation that was enacted so as to combat, protect and prevent the unlawful sexual violations. The protection was an ascertainment ensued to all persons from the illegal sexual acts. The then Member of Parliament Hon. Njoki Ndung’u Sussana tabled it in parliament which was propagated by the Civil Society Organizations, politicians, Human Rights Organizations inter alia.
The act was brought in to bridge the gap that was left out by the then Penal Code on sexual and gender based violations that had not been captured by the Penal Code.
The act introduced a variance of sexual based violations including; Rape, Attempted Rape, Gang rape, Defilement, Attempted defilement, indecent acts with a child or adult, incest, child sex tourism just to mention a few.
The act was hence passed to help abate the prevailing problem of sexual violence. In furtherance to that, the problem as to consent was and capacity in relation to the sexual offences.
In this paper, examination and analysis as to the some of the specific offences will be done and some of the issues faced when trying to enforce the provisions. Some of the features that the act has brought into shape and some of the problems arising out of its implementation will be assessed.
Objectives of the act
-The act herein was enacted to deal with sexual violations, the major objectives sought to be curbed are as hereunder;
a. -To educate the public on the sexual and gender based violations as well as equip the institutions and systems in place on the possible charges once found guilty on the offences that were articulated in the act.
b. -To develop a wide-ranging law that grants the opportunity to analyze the strengths and gaps of the systems that were in place and also advocate for the adoption of model legislations on sexual violations. The successes as to this objective comes to fruition with the number of cases and litigated upon. Thus the common loopholes that were existent in the system were sought to be eloped.
c. -To introduce a culture of equity between men and women where Kenya was renowned for being a paternal cultured state. The rights of men and women were therefore articulated in the statute to being them on the same level.
Examining some of the successes of the act.
The high rates of rape as already stated led to humiliating moments to the victims which made them shy away from reporting the same to the proper authorities. This trend of sexual violations and the fear attached therein led to traumatizing moments to the victims which thus led to need for a law that could comprehensively deal with the ethical issues. The enactment has thus far led to some salient successes as discussed hereunder;
The law had previously failed to recognize the fact that even men can be sexually abused or become victims of sexual violence, the reason for this was that most law makers then were of the African culture which deems men as more superior and hence immune or rather could be defiled or raped. Years later the legal provisions became clear when strict guidelines as to sentencing were brought into place.
The Sexual Offences Ac does acknowledge and adopted the use of modern technology as admissible and applicable in the several judicial enforcing bodies, the use of DNA tests for instance in proof of whether a fetus a result of instances like rape or defilement has come in handy to help the prosecution establish a case beyond reasonable doubt.
Establishment of institutions for minors has been made possible by the act,[1] the Borstal Institutions for instance has been a massive success as a correction facility for the child offenders especially those found culpable for the offence of defilement.[2]
In furtherance, the management as to medical treatment and protection of the victim’s dignity was brought into place where the names of children are to be confidential and not published to ensure that their future is not distorted by making the headlines for the wrong reasons.[3]
The proposed amendments of the Sexual Offences Act of 2006 on the Sexual Offences Bill of 2016
Hon. Florence Mutua, the then Member of Parliament of Busia tabled a bill before the parliament which sought to redefine several provisions of the Act.[4] The provisions on indecent acts with a minor[5] was redefined to as any contact between any part of the body of a person with the genital organ, breasts or buttocks not including penetration.
The bill further sought to prohibit and estop plea bargaining and settlement out of court on the sexual and gender based violations. The reason for this clause is that parents or guardians sought to extort and solicit money and wealth from the perpetrators to act as compensation for the act, it hence puts a sentence of up to 5 years for any person found guilty of this offence of soliciting for money or property from the perpetrators or a fine of not less than five hundred thousand.
The amendment also sought to protect the child and promote equality in litigation of criminal cases who in most instances is the victim in a consensual sex. This therefore will give the judges and magistrates to determine whether the sexual act was as a result of girlfriend/boyfriend affair and prescribe what should be done.
2.0. AN APPRAISAL OF THE SALIENT FEATURES OF THE SEXUAL OFFENSES ACT
This section will try to analyze some of the general loopholes and issues that are faced in the application of the Sexual Offences Act. The application by courts and institutions established by the Sexual Offences Act have been successful and problematic as well as will be illustrated hereunder;
a. Issue with consent
Kenya has in the recent passed been faced with several cases on sexual violations which forms part of the gender-based violence. This takes the form of rape, defilement, sexual assault, incest inter alia. Just as encapsulated in the foregoing paragraphs, the Sexual Offences Act was enacted so as to help curb the rising cases of sexual violence.
The determination of guilt is therefore determinant on the aspect of consent which is the common grundnorm in all the aforesaid offences as without the authority through consent then the same amounts to a criminal offence. This section will therefore discuss the consent aspect as laid down by the Sexual Offences Act and try examine the prevailing jurisprudence on the same.
The law[7] does place a burden upon the suspect/ accused person to adduce evidence showing that the complainant did consent or there is a reasonable reason to believe that the complainant did consent. In Sheldrake v. DPP,[8] the court held that the kind of burden required to prove consent is not that of burden of proof but rather raising the issue and proving it in the course of the case for consideration by the court. Whenever such is proved, the burden henceforth shifts to the prosecutor to prove beyond reasonable doubt that there was no consent sought. In furtherance to the above, section 45 of the Sexual Offences Act[9] does provide for conclusive presumption about the issue of consent in sexual offences violations. The interpretation of the above clause is that there are certain circumstances that will result to the proof of lack of consent.
b. Issue as to settling out of court.
The law as it is was enacted to combat the sexual violations as the same are considered to be of a higher magnitude. Judicial officers, police officers as well as those who are mandated with the obligation to enforce this provisions are sometimes involved in trying to reconcile the parties involved. This has been branded as the traditional approach in solving disputes. Cultural and gender biases have also been a root of this issue as some traditions deem it necessary for disputes to be solved traditionally. The problem with this approach is that the same offenders are accepted back into society. This then sets a bed rock for the repeat offenders who in most instances want to invoke this resolution method and in the end don’t get to learn or be retributive on the crimes they commit. Some of the offenders involved in this kinds of act do them deliberately unlike others who do it and learn from their mistakes. The law as of above implies that it should be applied and construed as it is written.
c. Issue as to age
Age has been subject to much scrutiny in enforcing the crimes under the Sexual Offences Act. For instance in defilement cases, the prosecution needs to prove their case beyond reasonable doubt, among the elements are that (i) there is an act of penetration and (ii) the age of the minor(girl) is under 18 years. The challenge posed in proof of this second element of age is how does one prove age? Considering that some people still have problems is acquiring birth certificates upon birth of the child. The defence accorded to accused persons of proving that the minor behaved in a manner to believe that she was over 18 years. In the case of SC v R,[10] the appellant therein was convicted to 20 years imprisonment for the offence of defilement contrary to section the provisions of section 8(3) of the Sexual Offences Act of 2006. The accused herein being a minor of 17 years, induced the complainant herein of 15 years into having sex and consequently getting her pregnant. The complainant testified before court that she had a relationship with the appellant and had even agreed to get married. The trial magistrate found the accused person as having not proved the provisions of section 8(5) that would acquit him for the offence. The question before the appeal court was hence whether the age of the complainant had been proved but it was established that the question as to age had not been proved hence the age of the complainant was in question hence was acquitted on that ground.
Emanating from this case, the issue as to age has been in contention before the court, which is a technicality but rather crucial in establishing a case beyond reasonable doubt. As in the SC v R case, the issue as to the right personnel to convict is contentious as in that case, both complainant and accused are both minors and as depicted from the evidence by the complainant that they were in a relationship with the accused person raises eye brows as to who should be convicted as they are both on the wrong.
3.0. APPRAISAL OF SOME OF THE PROVISIONS OF THE SEXUAL OFFENSES ACT OF 2006
Defilement
Defilement has been defined as the act of causing a penetration with a minor or a person under the age of 18 years.[11] In C.K.W. v. Attorney General and Director of Public Prosecution[12]the petitioner in the matter herein was a 16 year old facing a charge of defilement before the magistrate’s court. The complainant was a minor aged 16 years as well. The facts were that the accused had caused penetration with the girl herein which was contrary to sections 8(1) and 8(4) of the Sexual Offences Act of 2006. The petitioner herein being the accused in the defilement case before the magistrates court lodged an application before the high court seeking to declare sections 8(2) and 11(1) of the Sexual Offences Act as being unconstitutional for being inconsistent with the rights of a child that are enshrined in the Kenyan Constitution of 2010. The Sexual Offences does refrain sexual conduct between minors. The High Court herein declared that the provisions in question were not discriminatory in any way by criminalizing sexual conduct between consenting adolescents. The court was of the view that when a provision is claimed to be discriminatory, then the impact of the law must be weighed and assessed against the rights and conduct that the alleged discriminatory provisions try to protect. The judge further opined that the Sexual Offences Act seeks to achieve the societal goals which implies protecting the children from any form of premature sex which in this case outweighs the discriminatory impacts alleged. The choice of prosecuting the petitioner herein for the offence of defilement is not discriminatory as the law does not specify the gender between a boy and girl to be tried before court.
From the foregoing case, several issues arise which need clarity. The first being the provisions of sections 8(2) and 11(1) of the Sexual Offences Act[13] is discriminatory to the male children in instances of consensual acts between minors. The male minors fail to be accorded equal protection as envisaged under article 27(5) of the Constitution.[14] If the law seeks to be equal to both genders, it’s prudent that both parties to the act are subjected to proceedings in court for taking part in indecent acts and both be punished accordingly, this will hence act as a deterrence for minors of both genders.
The second issue with the application of sections 8(2) and 11(1) of the Sexual Offences Act is that it runs contrary to the provisions of the child under the Constitution, this is due to the fact that the provisions do criminalize consensual acts between minors. The Children Act does provide that a child is a person under the age of 18 years.[15]
The issue with consent on defilement cases
Consent in defilement cases has been held to being unnecessary, what needs to be proved is the fact that there was penetration on a minor.[16] In the Kenyan case of Martin Charo v Republic,[17] where the appellant was charged with the offence of defilement contrary to section 8(1) of the Sexual Offences Act. The facts were that the appellant herein had caused penetration onto a minor aged 13 years, the trial court convicted him to 20 years imprisonment. The appellate court in trying to assess the evidence and it came to the realization that the minor claimed to have been defiled had voluntarily been going to the accused person’s house for purposes of having sex. The court further came to the realization that the defence the accused relied on being under section 8(5) sufficed as the minor had a tendency and practice of engaging into sex with different men and hence prompted the accused person to think that the minor was an adult as she behaved like an adult. The accused person herein was therefore acquitted by the appellate court. The question sought to be asked is to what extent is the defence for defilement applicable and what’s its nature and legal standing? There needs to be due diligence otherwise this defence will be invoked even where the same is not of essence. This said case hence puts lots of issues to question and their applicability.
In furtherance, in the case of Bonu v R,[18] the appellant herein was convicted with the offence of defilement contrary to section 8 with a minor aged 10 years. He alleged that he the said affair was that of a willing participant in the relationship and hence the minor had consented to the acts. However the court in this matter reiterated the acts provision that a minor does not have the capacity to consent hence all sexual acts with a minor who is under 18 years amounts to an offence whether or not the minor consented into the relationship.[19] The same position as reiterated in Phillip Kipkoech Chepkwony v. Republic,[20] where the appellant had been convicted with the offence of defilement contrary to the provisions of the SOA. The appellant claimed that the minor was his girlfriend but the court rejected this approach for the reason that the SOA does not allow sexual Intercourse with a minor aged 16 years.
Emanating from the issue on consent in defilement cases, the court have been strict on the issue on age and capacity to consent, this though was varied in the Martin Charo case where the appellant was released on the grounds that the appellant had proved that the minor was behaving in a manner to convince him that she was over 18 years. This hence puts the aforesaid provisions to question. Does a child behaving an adult mean that the child is an adult or should the court be a tool and means used to ensure that there is due diligence in ensuring whether one is a minor or not.
Further, despite the many criticisms in the Martin Charo case, it not only leads to legal contradictions as to what the law says and what the society does but also is a clear indication of the need for amendments for some of the contentious provisions considering it has been alleged to being against the boy child.
Issue with the word penetration
The Sexual Offences Act has on several occasions on its provisions described the word penetration as the complete or partial insertion of one’s genital organs into another person genital organs. Section 2(1) of the Sexual Offences Act has defined genital organs for purposes of interpreting and applying the act as including both the male or female genital organs.
According to Collins Concise Dictionary penetration has been defined as;
a. to find or force way into or through (something) piece,
b. (Of a man) to insert the penis- into the vagina of (a woman).
It is therefore wrong and contentious to assume that female genitals can penetrate that of men. The ability of a person to be acquitted based on technicality is easily illustrated in the wordings in trying to apply or construe the word penetration.
Rape
a) Intentional and unlawful penetration of either male or female genitalia to the other,
b) The other person/victim does not consent to the penetration,
c) No consent is sought or is forcefully obtained with threats and intimidation.
The act does provide that the punishment for rape equates to at least 10 years. The act herein did bring another dimension by recognizing that either male or female has the ability to rape which is different from the masculine oriented approach of the Penal Code[23] which does recognize that only a male personnel has the ability to rape. Attempted rape and gang rape are the other offenses that have been introduced with punishment of 5 years and 15 years respectively with which both can be extended to a maximum of life imprisonment.
Consent in rape cases
Prior to the enactment of the Sexual Offences Act, the court invoked the offence of rape under the provisions of the Penal Code as it was determined in the case of R v. Oyier[24]where the court reiterated that the absence of consent is an element of rape. It further stated that the aspect of mens rea need not be state of mind but rather the intention which implies the intention to have sexual intercourse without prior consent.
In the case where the victim withdraws consent before the act, the appellate court in Paul Ngang’a Kamau v. Republic[25] convicted the appellant to 12 years imprisonment after being found guilty of the offence of rape. The facts of the case is that the complainant in the case had agreed to spend the night with the appellant whom she had met in a bar for a fee. The appellant herein then took her to a house and raped her together with two other men. The complainant stated that she had withdrawn her consent after the sexual intercourse with the appellant.
In determining whether there was lack of consent, corroboration was such a core requirement but that changed as fabrication of evidence by family members or victims lied before the court. The prosecutors hence get to rely on medical reports as evidence in proof of this. The case of David Bundi Mararo v. Republic[26] best illustrates this where the appellate court upheld the holding in the trial court. The appellant in this matter had dragged the complainant into a nearby farm and had sex with her. Before the court was clothes that had been soiled with blood and mud and immediately told the persons around of what the appellant had done to her thus had no time to fabricate the story. The medical report confirmed that the complainant was in her menses and hence would proof the blood, there was also stiff neck scratches on her face which was proof of struggle. The court hence found the appellant guilty.
Consent in marital rape.
This has been described as the instance where one person uses threat or violence to force his/her spouse into having sex without consent. The presumption is based on cultural stereotypes that allude to a man’s superiority with regards to rights to access to sex on their wives.[27]This position is reiterated by Lord Hale where he opines that:[28]
“But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.”
Emanating from the above. It is clear that husbands were not held liable for the offence of marital rape considering the fact that consent is such a hard element to prove before the court when one is a couple.[29]
In Kenya, the Constitution vide article 45(3) advocates for equality in a marriage both during and after the dissolution of the marriage, this provision therefore gives parties to a marriage equal bargaining and negotiation powers which in this case includes sexual rights. This approach is cemented by a pre-2010 case of Nandi V Bobo[30] where the petitioner in the matter filed for dissolution of marriage on the grounds that the respondent had been cruel, was an adulterous man and forced her to have sex with him when he was drunk without her consent. The court in its decision did not hesitate to grant the dissolution as there was an element of lack of consent during the sexual conduct.
Sexual assault
Sexual assault has been defined by the act to mean the unlawful penetration of the genital organs of another person with any part of the body of another with an object.[31] The implication of this provision is that the penetration in question is conducted with an object other than genital organs. This can be a bottle or an object with the ability to penetrate. The act though exempts this kind of penetration that is done for medical and proper professional hygienic reasons. The penalty on this offence is a minimum penalty of 10 years imprisonment that can be enhanced to life imprisonment. This offence is often used as an alternative charge for rape or defilement cases.
In the traditional and customary set up, this is often contrasted with the offence of female genital mutilation which in most communities practicing it view it as a rite of passage into womanhood. In most cases, women under this communes get to consent into doing this cultural practices as a result of societal pressure, the consequence of not consenting to this act would result to people being looked down upon by the society at large.
In an effort to combat this, in the year 2011, the Prohibition of Female Genital Mutilation Act was passed.[32] The act made it an offence to perform FGM on a woman with or without her consent. The major challenge this act faces is that the victims are ashamed and fear that any attempt to salvage the situation will result to them being looked down upon by the society. Hence the perpetrators get to go away with the offence without punishment.
Incest.
Incest has been defined under the act as sexual relations between people who are closely related by birth.[33] The objective the act seeks to achieve by prohibiting this act is to prevent the transmission of congenital weaknesses associated with close blood relations which comes about after the conception of a child. The act prescribes a penalty of at least 10 years that can be enhanced to life imprisonment where the other party involved is a minor of under 18 years.
Issue with consent in incest cases.
There is no explicit legislation dealing with consent in matters to do with incest. However, implied consent none the less is no defence for doing this act. Whenever a court is convinced and proof brought before it showing that the perpetrators are of a close consanguinity, then the court will enter a conviction against them irrespective of whether the parties consented to it or not.
In P.M.M v R, the Court invoked the definition of Wikipedia that states as follows;
“Incest is any sexual intercourse between close relatives, irrespective of the ages of the participants and irrespective of their consent that is illegal in the jurisdiction where it takes place.”[34]
Among the Kenyan communities, this act of incest is considered to being a taboo. Save for some few communities. The availability or lack of consent is no defence in doing this act.
Emanating from this offence is that the act is culpable whether the perpetrators involved therein consented or not. The same is aggravated whenever a minor is involved which can be extended to life imprisonment. The reason and argument behind is that the same accrues other offences like defilement and rape which it is presumed that a minor lacks the ability to consent to any sexual offence.
4.0. CONCLUSION AND RECOMMENDATION
CONCLUSION
The Sexual Offences Act was enacted to manage and address the issue on prosecuting sexual violations. Back on 2006, the statistics showed that there was an act sexual violation after every half an hour, due to lack of legislations to help deter this acts. The process of seeking the help one needed like getting a P3 form was humiliating and thus many people shun away from reporting this acts. The act was then enacted and the definition of terms, clarity as to the offences and punishments for the crimes was now enforceable in court.
Upon the enactment of the Sexual Offences Act, it became clear that Kenya had lacked a legal mechanism to help curb and address the then rising cases of sexual offences related violations. The Sexual Offences Act addressed the domestic violence and/or gender based violence related acts. The act introduced 14 new offences. In furtherance to that, the penalties that were introduced were on a variance of scales, it introduced bare minimum while trying to establish a burden of proof. Stiffer and more diverse penalties were introduced.
It’s therefore prudent to state that the pros that came with the enactment of this act also resulted to some cons as I have established in the substantive work of this research.
The need for implementation of some of the clauses contained in the Act is wanting with the change in generation and circumstances. As I am going to discuss hereunder are some of the reforms that the act and recommendations that I propose should be occasioned on to the act for purposes of achieving the objectives it was established and meant to achieve.
RECOMMENDATIONS
From the foregoing analysis as from here above, it’s clear that both the law enacted and the institutions established are in dire need of amendments so as to be capable of combating the sexual violations as well as the gender based violations that is sought to be addressed and abated by the act. For the purposes of ensuring justice and fairness is brought upon the victims of the sexual offences as well as for purposes of deterrence, the following include the reforms I seek be conducted:
a. Involvement by the county governments in combating sexual violations.
The county governments being closer to its citizenry compared to the institutions of the national government are better equipped to deal with the issue on making it public and aware of the provisions of the law on the subject of sexual based violation. The ministry of education for instance can be coerced into joining hands with the county governments and ensure there is public awareness related to this offences. The ministry of education can incorporate a rather simple and short section into the syllabus. The procedural issues like vigilance and what ought to be done once a sexual violation has occurred. The principle of good neighborliness can also be cultivated and bring neighbors to the attention of the others in the likely event a sexual violation is likely to occur and reporting the perpetrators to the relevant authorities.
The county governments being the complementary of the national government can help shoulder the burden placed upon the national government through the relevant offices, the said offices can be branched unto the county governments for efficiency purposes.
b. Legal Reforms and enforcement.
For purposes of fulfilling the ends of justice, it’s prudent that the law be amended to ensure that there is fluidity and justice that is achieved at the end. First, the issue pertaining the maximum and minimum time frame for a sentence that ought to be given is such a barrier to the judges and magistrates as once found guilty, there is more to the guilt than the finality of it all. The issue on mitigation for instance was a concept introduced so that the judgements can be lenient and harsh as well based on the situation at hand. The prefixed terms by the law does prevent flexibility, development and promotion of jurisprudence on those matters and thus restricted to the provisions of the law. The issue on extent of liability is also brought into light concerning the same, it’s not every instance a person is to be wholly blamed but rather partially.
Section 32 hence for purposes of compliance ought to be amended to entail pre-trial briefings to be part of the court record and enable the magistrates and prosecutors comply.
The issues on rape and defilement ought to be given priority and heard expeditiously to avoid the trauma that comes with it considering they are such crucial violations.
The matters on defilement ought to be given a different set up that is children friendly to help boost the child’s confidence while giving evidence. The fact that there is more technological transformations ought to be promoted to the court set up as well, with this I imply that the accused persons in defilement matters for instance ought not be in the same room with the victim. This will reduce not only the trauma but also make the victims speak without fear as there is usually still more fear onto the victims if the victim was initially threatened by the suspect during and/or before the act.
The current law enforcement programmer is not equipped with the procedural aspects involved with the sexual related offences and thus there is need for a specific unit established to deal with this issues, this can be done by placing one officer in each police post who is equipped and well versed with this issues and deal with them promptly once they arise.
c. Education and cognizance programmes on sexual violations.
Matters pertaining the sexual offenses need to be put out to the public to enable vigilance. This is majorly targeted to the cultural practices such as Female Genital Mutilation which some communes still practice as a form of custom that a woman ought to go through before being considered a woman ready for marriage. This though being contrary to the Sexual Offences Act ought to be sensitized to the public to ensure such acts are eliminated as they are a degradation to women’s and children’s rights, the right to privacy ought to be respected, protected and promoted through such programs.
Kenya has historically been regarded as a patriarchal society, this implies that most men have not yet admitted to the fact that both men and women are equal and hence ought to be treated with dignity as well. Thus men are also tasked with the duty to being vigilant and reporting any incidences of sexual violations or gender based violence.
The LSK Legal awareness week which is a program conducted annually for purposes of enabling the public acknowledge their rights and any legal issues they deem to have, more emphasis ought to be put to this and do a specialized kind that is solely based on sexual violations. In that regard, plaudits go to CEDAW, FIDA and KNCHR that have been the front runners and pioneers in helping the victims and making legal awareness on sexual based violations.
d. Further recommendations.
Rape is an issue that has been detrimental to the promotion of the act, the complex marital rape in this regard has been in most instances shunned away upon by many people. The main issue with this is that it does meet the criteria set out for satisfying the crime of rape, there is need for criminalizing marital rape, the issue with this is that it will lead to marital breakdowns with the intention of getting wealth and the alleged perpetrator locked away in prison. The element of proving the actual act was done in the cause of the pleasure or there was an intention to occasion the rape will be hard to prove.
There is need to put a close eye on perpetrators who have already served their sentence in prison as some are often repeat offenders. There is need to make it mandatory for them to occasionally report a probation officer for a status update and ensure they are at the right hand of the law.
The act having been enacted before the 2010 Constitution of Kenya means that there is need for some clauses to change and conform with the constitution, section 46 for instance needs to be amended and ensure proper and faster implementation of the act. The need for more institutions and infrastructure to cater for the victims needs to be put into consideration and set up to help harbor them.
[1] Borstal Institutions Act has been put in place to litigate on child offenders while in those institutions.
[2] Section 8(7) of the Sexual Offences Act.
[3] Article 28 of the Constitution of Kenya does advocate for the right to dignity be respected and the act has taken measures to ensure the same, Article 31 guarantees the right to privacy which runs in tandem with the right to dignity to protect the minors and child offenders.
[4] Sexual Offences Act of 2006.
[5] Section 11
[6] Section 42.
[7] Sexual Offences Act section 44
[8] [2005] 1 AC 277 at 289.
[9] [2006]
[10] Criminal Case 19 of 2009 at the High Court of Kenya at Malindi.
[11] Section 8 of the Sexual Offences Act.
[12] C.K.W. v. Attorney General and Director of Public Prosecution [2014] eKLR, Petition 6 of 2013 Kenya, High Court
[13] [2006]
[14] Article 27(5) of the Constitution [2010] does complement the provisions of Article 27(4) which provides that the state shall not discriminate any person on any ground which includes age, gender, culture inter alia which does go contrary to the application of sections 8(2) and 11(1) where in its application, male minors who involve in consensual sexual acts with a female minor, are the ones charged.
[15] Section of the Children Act of 2001.
[16] Teddy Bear Clinic for Abused Children & Another v Minister of Justice and Constitutional Development and Another [2013] ZACC 35.
[17] Martin Charo v Republic [2016] eKLR, Criminal Appeal No. 32 of 2015.
[18] [2010] eKLR
[19] See also Solomon v. R [2010] eKLR.
[20] High Court at Nakuru, 2006
[21] Section 3 of the Sexual Offences Act of 2006.
[22] Unlawful and intentional is defined under section 43 of the Act.
[23] Section 139 of the Penal Code.
[24] [2008] 1 KLR (G & F)
[25] Criminal Appeal 2004, High Court at Nakuru
[26] Criminal Appeal 113 of 2009, High Court
[27] Patricia
Kameri‐Mbote, “Violence against women in Kenya, An analysis of Law, Policy and
Institutions”,
International Environmental Law Research Centre, IELRC Working Paper 2000‐1
[28] Regina V R [1992] 1 A.C. 599.
[29] Jennifer A. Bennice & Patricia A. “Resick: Marital Rape; History, Research and Practice; Trauma, Violence and Abuse” Volume 4, No.3, July 2003, Sage Publications 228‐246.
[30] Nandi V Bobo Nairobi High Court Divorce Cause No. 84 of 2005
[31] The Sexual Offences Act of 2006, Section 5.
[32] No. 32 of 2011.
[33] Sections 20 and 21.
[34] www.en.wikipedia.org/wiki/Incest last accessed on 12 October, 2018
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