The High Court has declared that the prosecution of adolescents involved in consensual and non-exploitative sexual relationships violates the Constitution.
In a judgment delivered virtually on Wednesday, Justice Bahati Mwamuye ruled that sections of the Sexual Offences Act are unconstitutional when applied to consensual relationships between adolescents of close age proximity.
The petition had been filed by three adolescents together with the youth rights organisation Network for Adolescent and Youth of Africa (NAYA), who challenged what they described as the blanket criminalisation of adolescent sexuality under Kenya’s defilement laws.
The court found that Sections 8, 9, 11 and 43(4)(f) of the Sexual Offences Act infringe on several constitutional rights, including the rights to dignity, privacy, equality, health, and the principle that the best interests of the child are paramount.
Justice Mwamuye, however, maintained that the law remains valid in cases involving coercion, exploitation, abuse, trafficking, or non-consensual conduct involving children.
“The blanket nature of the impugned provisions renders them over-inclusive,” the judge stated, noting that the provisions criminalise conduct that does not involve coercion or abuse.
The court heard testimonies from three young petitioners whose experiences formed the basis of the case.
One petitioner, identified as HSO, was arrested and charged with defilement after entering into a consensual relationship with a 16-year-old girl. He was detained after failing to raise a cash bail of Sh50,000.
Another petitioner, AMO, was arrested after his teenage partner, TA, became pregnant while both were minors. The charges were later dropped after authorities confirmed their ages.
TA also told the court she was interrogated by police without legal representation and later faced stigma at school and within her community.
The Attorney General opposed the petition, arguing that the Sexual Offences Act is intended to protect children and that minors cannot legally consent to sexual activity.
The State also argued that the matter had already been determined in the 2014 case of CKW v Attorney General, which upheld the constitutionality of the defilement provisions.
However, the court distinguished the present case, saying it specifically addressed consensual peer relationships among adolescents, an issue not conclusively determined in the earlier decision.
In reaching its decision, the court cited comparative international jurisprudence, including South Africa’s Teddy Bear Clinic case, which struck down similar provisions criminalising consensual adolescent relationships.
Justice Mwamuye ruled that less restrictive measures exist to protect adolescents, including close-in-age exemptions, diversion programmes under the Children Act, and access to adolescent-friendly reproductive health services.
The court further directed the Office of the Director of Public Prosecutions to formalise and publish guidelines on handling consensual adolescent relationship cases.
The National Police Service was also ordered to review its arrest and investigative procedures to align with the judgment, while government agencies dealing with health, education and child protection were directed to develop policies that allow adolescents to access reproductive health services without fear of criminal prosecution.
Additionally, the court permanently stayed criminal proceedings that had been instituted against two of the adolescent petitioners before the Makadara Law Courts.
Justice Mwamuye emphasised that the ruling should not be interpreted as legalising exploitation or abuse of children.
“For the avoidance of doubt, nothing in this judgment shall be construed as barring lawful investigations or prosecutions in respect of sexual conduct involving coercion, exploitation, abuse of power, trafficking, or any non-consensual conduct involving children,” he said.
Interested parties supporting the petition included Reproductive Health Network Kenya, Katiba Institute and The Cradle.
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