The Double Standards of Childhood in the Kenyan Legal Framework: The Minimum Age of Criminal Responsibility versus Age of Consent
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THE DOUBLE STANDARDS OF CHILDHOOD IN THE KENYAN
LEGAL FRAMEWORK: THE MINIMUM AGE OF CRIMINAL
RESPONSIBILITY VERSUS AGE OF CONSENT
Mercy Deche*, Sarah Kinyanjui and Kiarie Mwaura.
ABSTRACT
There is considerable disparity between the thresholds set for children regarding consent and
criminal responsibility in the Kenyan legal framework. This has resulted in lack of uniformity
in the treatment of children as they engage the criminal justice process in different capacities.
This paper unpacks the three concepts of childhood, age of consent and minimum age of criminal
responsibility. It also discusses the resultant double standard and the extent to which it is
hypocritical, discriminatory and against children's best interests. It calls for the rationalization
of the concept of childhood regarding the age of consent and the minimum age of criminal
responsibility. It particularly argues that relaxing the dogma around the age of consent and
reconsidering the minimum age of criminal responsibility will bridge the wide gap between the
treatment issued by law to the 'good' and the 'bad' child. This will result in more pragmatic and
equitable treatment of all children as they engage with the criminal justice system, their varied
capacities and circumstances.
1. INTRODUCTION
There has been an ongoing debate regarding the emotive question of age of consent in
Kenyaover the last couple of years. The same was initially provoked by a memorandum
sent to members of the public calling for views on a proposed amendment to the Sexual
Offences Act which was perceived to adjust the age of consent downwards to sixteen.'
The debate has recently been refuelled by obiter remarks made by the Court of Appeal
on the issue of criminalisation of discretionary teenage sex.2 Those opposed to reviewing
the age of consent are unified by the argument that a person under eighteen years is still
a child who automatically lacks the mental maturity to consent to sexual intercourse.
The debate has been unfolding against a long-standing rigid attitude towards child
offenders who are deemed mature enough to bear criminal responsibility from as young
as eight years.3 This unreasonably low age does not seem to alarm the Kenyan public
as much as the proposal to lower the age of consent does. The national apathy to the
Mercy Deche, Lecturer, University of Nairobi, School of Law.
Sarah Kinyanjui, Senior Lecturer, and Associate Dean, University of Nairobi, School of Law, Mombasa Campus.
Kiarie Mwaura, Professor of Law and Dean, University of Nairobi, School of Law
1 R Odhiambo, 'Law Proposes Reduction of Consensual Sex Age from 18 to 16' <http://wwwthe-star.
coke/news /2016/12/20/law-proposes-reduction-of-consensual-sex-ae-from-l8-to-16 c1476072>. (ac-
cessed on 30 January 2017).
2 Eliud Waweru Wambui V Republic Nairobi Court of Appeal Criminal Appeal No Criminal Appeal 102 of
2016 [2019] EKLR.
3 The Penal Code (Chapter 63 Laws of Kenya), Section 14.](ViewImageLocal?handle=hein.journals/easfrilaj2019&div=5&collection=&method=preview&ext=.png&size=3)
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