In May, controversy over the age of consent reignited among Kenyans as the High Court in Nairobi decided to stop charging underaged teens in consensual, close-in-age relationships with the criminal offense of “defilement,” which could lead to up more than 20 years in prison.
While the court did not lower the age of consent, it gave judges more discretion to distinguish between predatory and consensual relationships among minors.
The 2006 Sexual Offences Act (SOA) effectively sets the age of consent in Kenya at 18 and invokes stiff penalties for engaging in sex with minors. Those convicted of the defilement of children ages 12–15 face a mandatory minimum sentence of 20 years in prison, with crimes against minors 16–18 getting a 15-year minimum.
But those penalties don’t only apply to adults—authorities often prosecute underage teen boys who engage in consensual relationships with girls under age 18. Due to the broad application of the SOA, authorities have arrested and jailed adolescents who engaged in consensual sex.
Kenyan Christians expressed mixed reactions to weakening the SOA. Some expressed concerns that the ruling undercuts biblical morality, opens the door to sexual abuse, and oversteps judicial boundaries. Others hail the change as showing grace to wayward teens who aren’t engaged in abuse.
For Enock Nyonje, a 39-year-old Christian and father of two who lives in Nairobi, the legal change could provide relief for his nephew, Miguel. The 19-year-old faces a possible 15-year jail sentence for sleeping with his girlfriend. According to Nyonie, Miguel met his girlfriend when he was 17 in a club in Kitale in western Kenya, where he worked as a bouncer after dropping out of school. She was 15 and still in school but didn’t tell Miguel her age.
After their first sexual encounter, she moved into the small house Miguel rented but didn’t tell her parents. They reported her missing, and the police found her two weeks later.
Nyonje said the police initially recommended settling out of court, and the girl’s family asked for 500,000 Kenyan shillings ($3,800 USD). When Miguel’s mother couldn’t raise the money, the police pushed the case to court. Nyonje said Miguel ran away in fear, but police arrested him when he returned home and locked him in a jail cell for three months.
Miguel’s single mother tried in vain to raise a bond of 350,000 Kenyan shillings ($2,700 USD). A well-wisher eventually posted bail for him. Two years later, Miguel’s mother and extended family are still trying to get the courts to exonerate him.
“It is a shameful experience. It excludes you from the community.” Nyonje said. “People stigmatized the whole family, and no one wanted to associate with them.”
But 38-year-old Caroline Gitonga, a survivor of sexual abuse as a teen and now mother of two children, said the sexual offences law offered protection to vulnerable girls like her and acted as a deterrent against would-be offenders.
Gitonga had her first child at age 16 after a middle-aged man who worked as a trader in their local market coerced her into sex when he gave her shelter for the night—her father had turned her out for letting the family’s goats wander away. Afraid to tell her parents what happened when she returned home the next day, Gitonga kept quiet until her pregnancy began to show.
Twenty-two years later, her abuser still hasn’t been prosecuted. Gitonga said it angers her.
Lawmakers didn’t pass the SOA until a couple of years after her assault. While the SOA didn’t create the categories of defilement, it combined Kenya’s legal codes on sexual offenses and clarified how to define and prosecute such crimes. If it had been in place, prosecutors might have taken up Gitonga’s case more readily.
“I don’t have a problem with the law as it is, as long as the police would do their investigative work properly, to find out the ages of those involved, and the circumstances surrounding each case, so that no one (boys or girls), would suffer unfairly,” she told CT.
The court petition challenging the SOA—brought in part by activists seeking to change social norms around teen sexuality—cited two cases. In one, police charged a 17‑year‑old boy with defilement after they raided the bedroom he shared with his 16‑year‑old girlfriend. In another, a 17‑year‑old boy faced prosecution for defilement after his girlfriend became pregnant, though authorities withdrew the charges after confirming he was a minor.
Petitioners’ arguments focused on the harms of criminalizing consensual teen sexual behavior. Some Christians also want to see prosecutions like this stop, feeling they unfairly target teen boys, whom Kenyans tend to culturally assume are initiating teen sexual relationships.
Maurice Onyango, a Christian professor at Daystar University, supports the new ruling because of his concern about what he calls “biased incarceration” of underage boys for having consensual sex with girls.
“Why incarcerate the boy as if it is the boy who is guilty of having sex and not the girl?” Onyango said. “If both are minors, why is the minor boy being judged as [an adult]?”
He said in the Bible, laws showed fairness—both men and women caught in adultery were stoned, not only one party: “Maybe that’s why Jesus did not condemn the woman caught in the act of fornication,” he said, referring to John 8.
Onyango criticizes the media for misreporting the ruling. “The courts did not give license for fornication, as the media reported,” he said. “It just rectified [an] anomaly.”
Complicating potential support for the ruling among Christians is that the three advocacy groups who brought the petition to court—the Centre for Reproductive Rights, Reproductive Health Network Kenya, and the Network for Adolescent and Youth of Africa (NAYA)—openly support abortion and liberalizing sexual behaviors among young Kenyans.
Victor Rasugu, executive director of NAYA Kenya, has stated he planned to pursue further reforms so that the SOA would no longer prosecute young people “for simply growing up.”
Beth Wairimu Gachurah of Transform Global, a life coaching and mediation organization, agreed the SOA’s application skews toward unfairly punishing boys, not girls, for consensual sexual relationships. Gachurah also wants penalties to be lighter. But she doesn’t agree with the ruling.
“This was a dangerous ruling in my view, opening a door to criminals to defile minors,” Gachurah said, worrying about the vagueness of “close-in-age” consensual sex among minors. She told CT she doesn’t believe minors can consent to sex with either adults or other minors.
Gachurah believes a better approach to protecting minors would require active, hands-on discipleship and character modeling from family and mentors so that teenagers choose not to engage in reckless sexual activity outside of biblical boundaries.
That would mean pushing past cultural taboos around the topic of sexuality.
“Churches can run parenting classes and other forums where parents are taught and empowered how to discuss sex and other topics with their children,” Gachurah said. Some ministries, as CT has covered, are already trying.
Moses Kimani, a missionary with United Adoration, doesn’t see much tension between holding to a historic Christian sexual ethic and supporting the ruling.
Kimani admitted some youngsters will construe the ruling as “license to engage in premarital sex” and believes Kenyans should grapple with imposing civil rather than criminal penalties. But not all sins should be crimes, Kimani told CT.
“More importantly, the church should rally around these youngsters for the long haul, providing spiritual, emotional and material support,” Kimani said.
Still, legal concerns remain. Njonjo Mue, a Christian human rights lawyer in Nairobi, not only worries that the current judgment may erode biblical morality but also raises constitutional concerns.
Petitioners in the case argued the criminalization of teenage sex is incompatible with the Constitution’s guaranteed rights to equality, dignity, privacy, health, education, and the best interests of the child. Though a 2006 ruling upheld prosecutions of minors as in the best interests of the child, Justice Andrew Bahati Mwamuye seemed to disagree.
While Mwamuye didn’t declare the SOA codes unconstitutional, he gave judges the discretion to work outside of mandatory minimum sentences, writing that “anything less” than a contextual approach would allow criminal law to operate “in a manner disconnected from constitutional values.”
Supreme Court Judge Njoki Ndung’u, who drafted the SOA in 2005, warned recently against giving judges power to reinterpret the laws’ requirements and minimum penalties when they haven’t been declared unconstitutional.
“Even if there is a case to change the law, the question arises whether such a fundamental shift in the law should have been done by the courts or left to Parliament,” Mue said. “There may be an argument to be made that the court may have overstepped its bounds.”
If no one appeals the ruling, Mue said the decision of the court will be the law of the land.
Nyonje said he expected the court to be lenient with his nephew, since Miguel didn’t know his girlfriend’s age when he met her at the club. In April, the magistrate postponed Miguel’s case when prosecutors said they weren’t ready to proceed. The courts had already banned Miguel from seeing his girlfriend and required him to report to the investigating officer monthly. But in August, Miguel didn’t appear for court. Nyonje said no one knows where he is. The court has issued a warrant for his arrest.
“Young people should always think of the consequences of their actions,” Nyonje said. “This will help them to make wise decisions that will not land them in trouble.”
