The petitioner, C.K.W., who was 16 years old at the material time, was facing a charge before the magistrate’s court for the offence of defilement for having penetrative penile-vaginal sex with a girl the same age, which was contrary to Sections 8(1) and 8(4) of the Sexual Offences Act, 2006 (Sexual Offences Act).
C.K.W. submitted an application before the High Court of Kenya, calling on the Court to declare Sections 8(1) and 11(1) of the Sexual Offences Act invalid to the extent that they are inconsistent with the rights of children as protected under the Constitution of Kenya. The Sexual Offences Act criminalizes sex between all individuals under the age of 18, without regard to their capacity to consent.
First, the Court affirmed that when a person commits an act of penetration with a child, the offence of defilement is committed, and whether or not there was consent is not an element of the offence.
The Court considered the South African case Teddy Bear Clinic for Abused Children & Another v. Minister of Justice and Constitutional Development and Another (2013), highlighting that the South African court held that fundamental rights of children may be limited by legitimate reasons, such as to protect them from harm. The Court also took into account the testimony of two child psychology experts who testified that when adolescents are left to themselves to sort out their sexuality issues, they tend to engage in risky behavior due to poor decision-making and power imbalances within the sexual relationship. However, the Court did not follow the reasoning of the South African Court in the Teddy Bear Clinic case, which established that punishing sexual expression that is developing in a normal and healthy way is degrading to the adolescent.
The Court said it was counter-productive to allow adolescents to carry on sexual activity even if such activity was deemed developmentally normal and consequently, the Sections 8(1) and 11(1) of the Sexual Offences Act were not inconsistent with the rights of the child because they were meant to protect children from harmful sexual conduct. The limitation of the right of the adolescent to engage in consensual sex was therefore justified.
The Court analyzed the impugned provisions to determine if they indirectly prompted disproportionate prosecution against male children in instances of consensual sexual acts between minors and thus indirectly denied male children equal protection and benefit of the law, contrary to Article 27(5) of the Constitution of Kenya. The Court ruled that Section 8 of the Act did not distinguish, on its face, between a girl and a boy, and so the burden shifted to the petitioner to prove that it had a discriminatory impact on the basis of gender. The Court found that no such evidence of discriminatory impact was presented and therefore found that the law was not invalid on the basis of gender discrimination.
Moreover, the Court referred again to a South African case (See The National Coalition for Gay and Lesbian Equality & another vs. The Minister of Justice & 2 others CCT No. 11 of 1998) where the Constitutional Court of South Africa set forth the factors to be considered when determining whether an allegedly discriminatory provision had a disproportionate impact on the complainants, including the position of the complainants in society, the nature of the provision, and the purpose the provision pursued. The Court decided that the applicant had not provided evidence that the alleged discriminatory impact of the laws exceeded the worthy or important societal goal of protecting children. Therefore, the petition was found without merit and was dismissed by the High Court.