Consensual sexual relationships between adolescents of close age proximity should not automatically attract criminal charges, the High Court has ruled in a landmark judgment likely to reshape policing, prosecutions and child protection policy.
The court held that applying Sections 8, 9 and 11 of the Sexual Offences Act to consensual, non-coercive and non-exploitative adolescent relationships breaches constitutional rights of minors.
The ruling arose from a petition challenging the prosecution of three teenagers, two boys and girl aged between 17 and 19, at a Makadara chief magistrates court over defilement.
The petition argued that the law was being used to criminalise teenagers instead of protecting them from abuse and exploitation.
The court declared that enforcement of the Sexual Offences Act must distinguish between exploitative sexual abuse and consensual peer relationships involving adolescents close in age.
“A declaration be and is hereby issued, that the application of Sections 8, 9 and 11 of the Sexual Offences Act to consensual, non-coercive and non-exploitative sexual conduct between adolescents of close age proximity, absent evidence of exploitation, coercion, abuse or power imbalance, is inconsistent with Articles 27, 28, 31, 43 and 53 of the Constitution,” the court ruled.
It permanently suspended two criminal cases involving the teenagers, saying the prosecutions could not proceed in their current form because they concerned consensual adolescent peer conduct.
Sections 8, 9 and 11 of the Sexual Offences Act provides blanket criminalization of defilement, attempted defilement and indecent acts involving children.
The law treats all persons below 18 years as incapable of giving legal consent to sexual activity and at the same time treats the offenders equally irrespective of age.
Section 8 prescribes mandatory prison sentences ranging from 15 years to life imprisonment depending on the age of the child victim.
Section 9 criminalises attempted defilement, while Section 11 punishes indecent acts involving minors. A person convicted of attempting to defile a child aged 11 years or below faces life imprisonment, while attempts involving older minors attract jail terms of at least 10 years.
In addition, Section 11, which deals with indecent acts involving minors carries imprisonment terms of not less than 10 years.
The petitioners argued that the provisions made no distinction between rape, coercion and exploitation on one hand, and consensual relationships between teenagers on the other.
They told the court that adolescents arrested over consensual relationships suffered criminal records, interrupted schooling, detention, stigma and psychological harm.
The petitioners also argued that fear of prosecution discouraged teenagers from seeking reproductive health information, contraception and adolescent-friendly healthcare services.
In the ruling, the court directed the Office of the Director of Public Prosecutions to formalise, publish and gazette prosecutorial guidelines on handling cases involving consensual adolescent peer relationships.
“The Office of the Director of Public Prosecutions is directed to, within a reasonable period, formalise, publish and gazette prosecutorial guidelines based on its already existing internal guidelines,” the court ordered.
The National Police Service was also directed to review arrest and investigation procedures involving minors accused of sexual offences to align them with the court judgment.
The court further ordered State agencies responsible for health, education and child protection to develop coordinated policies ensuring adolescents can access sexual and reproductive health information without fear of criminalisation.
The judgment is expected to trigger debate among child rights organisations, religious groups, parents and legal experts over the balance between protecting children from sexual abuse and recognising adolescent rights under the Constitution.
The court, however, stressed that the ruling does not shield coercive or exploitative conduct involving minors.
Investigators and prosecutors were directed to distinguish consensual adolescent relationships from cases involving force, abuse, manipulation, exploitation or power imbalance.
“A mandatory order be and is hereby issued to the relevant investigative, prosecutorial and enforcement agencies requiring that they shall distinguish between consensual, non-coercive and non-exploitative sexual contact between adolescents of close age proximity and non-consensual, coercive or exploitative sexual conduct,” the judge ruled.
The court said criminal law could not be enforced in a manner disconnected from constitutional values and children’s rights.
“The impugned statutory framework, properly construed, must be read in a manner consistent with the Constitution and enforcement must align with that constitutional reading. Anything less will permit criminal law to operate in a manner disconnected from constitutional values,” it said.
The judgment is likely to have significant implications for future prosecutions involving adolescents and may force police, prosecutors and courts to reassess how the Sexual Offences Act is applied to teenage peer relationships.
