KENYA – Criminalizing Adolescence: A Call to Reform the Sexual Offences Act in Kenya

A joint publication of the Center for Reproductive Rights and the Federation of Women Lawyers, Kenya. Conceptualized by Evelyne Opondo, Senior Regional Director for Africa, and Lucy Minayo, Capacity Building Manager, CRR Africa.

The Sexual Offences Act (SOA) does not make any distinction between sex between adolescent minors and sexual acts between adolescent minors and adults — all of which are classified and/or have been interpreted as criminal offences. The SOA also does not make any distinction between non-coercive and non-exploitative and coercive and exploitative sexual conduct between minors. The SOA therefore criminalizes non-coercive and non-exploitative sexual conduct among adolescents. Consequently, adolescent males have been imprisoned and, in some cases, have ended up with a permanent criminal record for engaging in consensual sexual conduct with other adolescents.

Criminalization of non-coercive and non-exploitative sexual conduct among adolescents conflicts with policies on adolescents sexual and reproductive health and creates barriers that make it difficult for adolescents to effectively access sexual and reproductive health information and services… Health care providers may therefore be apprehensive about offering services to adolescent minors without parental authorization.

As recognized by the WHO, “An adolescent’s decision to go to a health service for sexual health care or advice is likely to be influenced by whether they will get into trouble with parents or guardians, or even with the law, in places where sexual activity under a certain age… is against the law.”

Criminalization also offends the principle of the best interests of the child which can be found in the Constitution, the Children Act and the CRC. The Committee on the Rights of the Child urges states to avoid criminalizing adolescents of similar ages for factually consensual and non-exploitative sexual activity17 and notes that it is in the children’s best interests to create laws and policies that facilitate their growth and development.

This document calls for changes in law, policy and sexuality education that are in the best interests of adolescents.