Sexual offences law discriminates boys, CJ Maraga says

Chief Justice David Maraga during a past event. FILE PHOTO | NATION MEDIA GROUP

The criminal justice system is biased against the boy-child in issues of sexual offences at a time when gender-based violence cases are on the rise, Chief Justice David Maraga has said.

The CJ made the remarks during the launch of a two-day peer learning seminar on criminal justice system on gender-based violence.

He said the issue has been exacerbated by gaps in the criminal justice system and expressed dissatisfaction in the manner in which a bill to decriminalise teenage sex was handled in parliament.


“There is an obvious injustice of filling up the jails with teenage offenders who get intimate with fellow teenagers as they experiment in their adolescence,” he said.

He explained how the Federation of Women Lawyers (FIDA) tried to address the issue by presenting a memorandum on the bill which proposed amendment on the Sexual Offences Act in the national assembly two years ago but in vain.

“The proposal was intended to clarify principals of law and to incorporate values and principals as enshrined in the constitution of Kenya 2010.

"FIDA had noted the problematic Section Eight of the Sexual Offences Act, which criminalises sex among teenagers, and had proposed that the section be amended along the Romeo and Juliet right so as to reduce the number of teenage boys going to jail,” he said.

FIDA wanted courts to have discretion in sentencing where sexual offences are between minors, he said.

“Unfortunately the Bill was shot down, this it is an area which needs to be seriously thought about. I have no problem whatsoever when the perpetrator is an old man, but when it comes to boys and girls between 17 years and 20 years, I have a problem with that,” he said.

The CJ lauded the Court of Appeal for setting a precedence in one of the cases. “Luckily, our courts are responding appropriately, for example when the Court of Appeal held that it is unconstitutional to criminalise sexual acts among teenagers,” he said.