Sexual Offense Laws in Kenya. Legal Framework and the Role of Consent

TABLE OF CONTENTS

LIST OF CASES

1. INTRODUCTION

2. LEGAL FRAMEWORK GOVERNING SEXUAL CONSENT IN KENYA
2.1 The Sexual Offences Act
2.1.1 Definition of Consent in the Sexual Offences Act
2.2 International Instruments

3. THE ROLE OF CONSENT IN SEXUAL OFFENCES CASES
3.1 The Offence of Defilement
3.1.1 The Role of Consent in Defilement Cases
3.2 The Offence of Rape
3.2.1 The Role of Consent in Rape Cases
3.3 The Offence of Incest
3.3.1 The Role of Consent in Incest Cases
3.4 The Offence of Sexual Assault
3.4.1 The Role of Consent in Sexual Assault Cases

4. COMPARATIVE STUDY ON EMERGING ISSUES ON CONSENT IN SEXUAL OFFENCES CASES
4.1 Issues arising on consent in sexual offences cases
4.1.1 When can one withdraw consent?
4.1.2 Proof of withdrawn consent
4.1.3 Marital Rape
4.1.4 Consent in Defilement cases
4.1.4.1 Defilement case involving a Minor and an Adult
4.1.4.2 Defilement case involving a Minor and a Minor

5. CONCLUSION AND RECOMMENDATIONS
5.1 Conclusion
5.2 Recommendations

BIBLIOGRAPHY

LIST OF CASES

Abbildung in dieser Leseprobe nicht enthalten

1. INTRODUCTION

Sexual offences remain a major challenge that Kenya is facing today. Sexual offences have adverse effects of derailing not only ones legal, social and economic development but also that of the country as a whole. There is a high prevalence of gender-based violence in Kenya. Sexual violence is one of the manifestations of gender-based violence with Malindi town in Kilifi County leading in sexual offences cases. Sexual violence takes many forms, including rape, sexual assault, defilement, incest, and many others. This type of violence is a reflection of gender inequality in a society where mostly men exercise power over women and girls. The Sexua l Offences Act, 2006 was passed in order to deal with the problem of sexual violence since sexual offences were previously governed by the Penal Code .

Sexual consent lies at the helm of determination of ones guilt in a sexual offence case since lack of it is an essential element in many of the offences under the Sexual Offences Act hence it plays a very important role in the determination of guilt in sexual offences cases. The Black’s Law Dictionary defines Consent as the agreement, approval, or permission as to some act or purpose especially given voluntarily by a competent person. Express consent is defined as consent that is clearly and unmistakably stated. Implied consent is consent inferred from one’s conduct rather than one’s direct expression, while informed consent is a person’s agreement to allow something to happen, made with full knowledge of the risks involved and the alternatives.¹

This research examines the legal framework for governing sexual consent and accessing whether it has been successful or not. This research will also propose reforms on the legal framework governing sexual consent for the strengthening of laws on sexual offences in Kenya.

2. LEGAL FRAMEWORK GOVERNING SEXUAL CONSENT IN KENYA

Sexual offences in Kenya are governed by the Sexual Offences Act², 2006 which was brought to force to deal specifically with sexual offences since sexual offences were previously provided for in the Penal Code.³

2.1 The Sexual Offences Act

This Act was enacted in 2006 to delineate the acts that qualify as sexual offences and to establish a means of punishing offenders, in an effort to prevent such offences and to protect all persons from unlawful sexual acts. Prior to the enactment of the Act, sexual offences were provided for under the Penal Code and were categorized under offences against morality. The Sexual Offences Act sought to consolidate all laws relating to sexual offences and repealed most of the provisions in the Penal Code relating to sexual offences. The Act also creates a number of new sexual offences such as gang rape, sexual assault, sexual harassment, child pornography, and trafficking for sexual purposes among others. A notable feature of the Act is that it provides for minimum mandatory sentences for specific sexual offences, as opposed to the Penal Code which only provided for maximum sentences and left a lot of room for discretion in sentencing .

2.1.1 Definition of Consent in the Sexual Offences Act

The Act has three important provisions relating to consent and they are: the statutory definition of consent, the test of reasonable belief in consent and the evidential and conclusive presumptions about consent and the defendant’s belief in consent.

Section 42 of the Sexual Offences Act defines consent. In its own words, it states that:

a person consents if he or she agrees by choice, and has the freedom and capacity to make that choice.

Although the section does not elaborate on the meaning of choice or freedom, this definition appears to emphasize the importance of free-will and the ability to make a decision as to whether or not to take part in the sexual activity at the time in question, in the absence of coercion or deceit. There is also no definition of capacity. However, it may be assumed that capacity here refers (as it usually does in law) to age and mental ability. The question is whether a complainant is of age to and has the mental ability to make a choice about whether or not to take part in the sexual activity at the time in question.

2.2 International Instruments

By dint of Article 2, sub-articles (5) and (6) of the Constitution of Kenya 2010, rules of International Law and treaties and conventions ratified by Kenya, form part of laws of Kenya. This means that should there be any laws ratified by Kenya on sexual offences, then it shall form part and parcel of our laws. However, there has not been a specific international instrument ratified by the Kenya Government to deal specifically with sexual offences. The international instruments ratified by Kenya address domestic violence and discrimination against women and are not much specific on the issue of consent.

3. THE ROLE OF CONSENT IN SEXUAL OFFENCES CASES

The role which consent plays in most of the sexual offences is normally very crucial to such cases especially where the act in question involves adults. However, not all sexual offences require the prosecution to prove that the other party consented to the act. For example, the sexual offence of bestiality is not discussed since one cannot say to have obtained the consent of an animal. Other offences where consent is not expressly provided for include: attempted rape, gang rape, sexual assault, compelled or induced indecent acts, acts which cause penetration or indecent acts committed within the view of a family member, child or person with disabilities, indecent act with a child or adult, promotion of sexual offences with a child, child trafficking, child sex tourism, child pornography, exploitation of prostitution, trafficking for sexual exploitation, prostitution of persons with mental disabilities, deliberate transmission of HIV or any other life threatening sexually transmitted disease.⁴

3.1 The Offence of Defilement

The Sexual Offences Act defines defilement to mean the commission of an act which causes penetration with a child.⁵ The word ‘Child’ means a person below 18 years of age.⁶

3.1.1 The Role of Consent in Defilement Cases

Defilement cases do not require the proof of obtained consent since one is considered a minor legally and therefore incapable of consenting to sexual activity. This is as was stated in Bonu v R ⁷. In this case, the appellant was accused of the defilement of a child aged 10 years. He alleged that he was involved in a love affair with the complainant and thus she was an active and willing participant to the sexual relations. However, the court stated that:

… [a] minor has no capacity in law to give informed consent to sexual relations, thus no matter how willing the minor may have been, any and all acts of sexual intercourse with persons proved to be below the age of 18 years amount to an offence.

In Masha v. R ⁸ , the appellant claimed that he had married a 13 year old girl under his community’s cultural norms, the court stated as follows:

… [t]he excuse that Giriama customs allow the marriage of underage girls is totally without merit. Cultural norms cannot be used to excuse criminal offences. A girl of 13 years is too young to give any informed consent to sexual intercourse, much less to marriage. The court will not allow young girls to be abused under the pretext of culture.⁹

In affirming that indeed defilement provisions in the Sexual Offences Act were made to protect minors, the court in Ezekiel Cheruiyot Koros v R ¹⁰ stated that a girl under the age of 18 years is either not fully mature to consent to and or engage in sexual intercourse and is too vulnerable and requires protection of the law from those bent on engaging in immoral sexual acts.

3.2 The Offence of Rape

Rape is defined to mean the intentional and unlawful act that causes penetration with one’s genital organs without the other persons consent to the penetration or if there is consent, then it is obtained by force or by means of threats or intimidation of any kind.¹¹ The Act also provides for the offence gang rape to cover situations where rape or defilement is committed in association with others, as well as for attempted rape.¹²

3.2.1 The Role of Consent in Rape Cases

Consent is an essential element in the determination of a rape case. Lack of consent qualifies one to have raped the other since it is considered the mens rea in the case. In reiterating that lack of consent is an essential element of the crime of rape, the Court of Appeal in R v Oyier ¹³ stated that the mens rea in rape is primarily an intention and not a state of mind.

Where a person yields through fear of death or through duress, it is rape and it is no excuse that the person consented first, if the offence was afterwards committed by force or against his or her will; nor is it any excuse that she or he consented after the fact. In the Criminal Appeal case of James Ng’ang’a Njau v Republic ¹⁴, the court in dismissing the appeal found that the appellant had obtained his way with the complainant by force since she yielded through fear of death and did not consent to the sex. In her own words, the complainant had testified that:

…He held my hand and I pushed him away. He came and held my neck and started strangling me. He took the torch and took a panga which was at the other side of the bed… He said if I talk he would kill me. When I realized he would kill me. I went back to bed as he told me and I slept… He returned in the bed and told me to sleep well. He climbed on the bed and he slept with me. He came and slept on me. He tore my underpants... He would have sex with me and sleep and then do it again. He raped me twice…¹⁵

3.3 The Offence of Incest

Incest is sexual intercourse or cohabitation between a man and a woman who are related to each other within the degrees wherein marriage is prohibited by law.¹⁶

The Sexual Offences Act defines incest as an act which causes penetration with a person who is to their knowledge, a relative.¹⁷

3.3.1 The Role of Consent in Incest Cases

The prosecution in incest cases only needs to prove that the accused and the complainant are indeed relatives and that there was either penetration or an indecent act committed by either of them.¹⁸ If there is a relationship between the two, then it overrules the fact that the other person consented to the sexual activity. The only mention of the word ‘consent’ in connection to incest in the Act is only brought about in that provision to bar one from claiming that a minor who is the relative consented to the sexual activity as a defence.¹⁹

In the case of Edward Shivanji Makanga v Republic ²⁰ , the appellant had been charged with the offence of incest contrary to Section 201 (1) of the Sexual Offences Act and upon conviction, sentenced to life imprisonment. The accused had defiled and severally raped his granddaughter, L W N, in a span of several years. His grounds for appeal were found to lack merit and were therefore dismissed by the appellate court which upheld the Magistrate’s Court conviction and sentence.

In cases where the prosecution is aware of the accused-complainant family relationship to be that of cousins or step family, they will choose to substitute the charges instead of proceeding with the charge of incest. Cousins are not provided for in Section 20 (1) as persons who qualify to be relatives for the purposes of the offence of incest. Courts have severally dismissed incest cases which involve cousins. An example is the case of W O O v Republic ²¹ among many others. In this case, the accused and the complainant were cousins. The accused was charged with the offence of incest contrary to Section 20 (1) of the Sexual Offences Act and upon

conviction, sentenced to serve ten years in prison. He appealed on the ground that the Magistrate’s Court erred in law and in making a finding that the appellant and complainant were related within the terms stipulated under Section 20 (1) of the of the Sexual Offences Act. Judge J.A Makau in agreeing with him, quashing the conviction of the trial court and setting him free stated:

… [t]he prosecution failed to prove that the Appellant is related with the complainant within the prohibited relationship enumerated under Section 20 (1) and 22 (1) of the Sexual Offences Act…²²

3.4 The Offence of Sexual Assault

Sexual assault is defined by Section 5 of the Sexual Offences Act as unlawful penetration of the genital organs of another person with any part of the body of another or with an object. In essence, it constitutes penetration of the genital organs with something other than genital organs, such as penetration with a bottle or other object or even digital penetration. However, penetration by objects carried out for proper and professional hygienic or medical purposes is exempted .

Female Genital Mutilation has been seen as a form of sexual assault on young girls and women since it is still being practised although the Prohibition of Female Genital Mutilation Act makes it an offence to perform the cut on anyone even if that person consented.

3.4.1 The Role of Consent in Sexual Assault Cases

An accused person(s) cannot claim that a complainant consented there advances of sexual assault. The prosecution only needs to prove beyond reasonable doubt that the accused person(s) indeed assaulted the complainant.

4. COMPARATIVE STUDY ON EMERGING ISSUES ON CONSENT IN SEXUAL OFFENCES CASES

Generally, Kenyan experience on sexual offences cases has been a learning process. This is due to the fact that different challenging cases have come up and the courts have been able to decide them accordingly though some decisions have been viewed as bad decisions. We identify issues arising from the Kenyan experience with regard to sexual offences cases. The issues are weighed against the jurisprudence of South Africa, United States of America and Nigeria with a view of accessing how they have dealt with similar issues.

4.1 Issues arising on consent in sexual offences cases

Several issues have arisen with regard to sexual consent in sexual offences cases in Kenya. The issues revolve around: (a) when can one withdraw consent? ; (b) how to prove withdrawn consent; (c) the issue of marital rape and (d) consent in defilement cases.

4.1.1 When can one withdraw consent?

Sexual consent can be withdrawn at any time during sex. However, despite this fact, reports show that people are unaware of this right mostly due to illiteracy or even customary laws that render refusal of women to have sex with their husbands a taboo(s).

In Paul Nganga Kamau v. Republic ²³ the appellant was convicted of rape and sentenced to 12 years’ imprisonment. The complainant testified that on the day of the incident, she met the appellant at a bar and agreed to spend the night with him for a sum of money. The appellant took her to a house and he and two colleagues raped the complainant for the whole night in turns. The complainant testified that she had withdrawn her consent at the time she had intercourse with the appellant. The court held that if it is proven that the complainant withdrew consent at any time before the sexual act, even if the complainant had initially consented, then the appellant is guilty of rape.

[...]

¹ Black’s Law Dictionary, 8th Edition

² No. 3 of 2006, Laws of Kenya

³ Cap 63, Laws of Kenya

⁴ “Legal Treatment Of Consent In Sexual Offences In Kenya,” Dr. Winfred Kamau at 11

⁵ Section 8, Sexual Offences Act

⁶ Section 2, Children’s Act Cap 141, Laws of Kenya

⁷ 2010 eKLR

⁸ 2010 eKLR

⁹ Masha v R, para 22

¹⁰ High Court of Kenya at Kericho, Criminal Appeal No. 5 of 2010

¹¹ Section 3, Sexual Offences Act

¹² Section 10 and 4 respectively, Sexual Offences Act

¹³ (1985) KLR at page 353

¹⁴ Criminal Appeal No. 298 Of 2009 in the High Court at Nairobi, 2014 eKLR

¹⁵ James Ng’ang’a Njau, para 21

¹⁶ Black’s Law Dictionary, 8th Edition

¹⁷ Section 20, Sexual Offences Act [Daughter, granddaughter, sister, mother, niece, aunt or grandmother for male persons and son, grandson, brother, father, nephew, uncle or grandfather for female persons]

¹⁸ FOD v Republic, Homa Bay High Court Criminal Appeal No. 32 of 2014 at para 16

¹⁹ Section 20 (1), Sexual Offences Act

²⁰ Crimial Appeal No. 313 of 2010, Nakuru High Court

²¹ Siaya High Court Criminal Appeal No. 81 of 2015

²² W O O v Republic para 17

²³ W O O v Republic para 17