A Malindi court judgement vs Kenyan Law on Defilement

Photo credit: BBC
Photo credit: BBC

I do not belong to the law profession, but posts like these make me dive to that unfamiliar territory. There’s this case that was ruled at a Malindi court on 10th March, 2016.

The Kenyan Sexual offenses act Section 8 (4) states: A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.

8 (1): A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.

Section 8 (5) states: It is a defense to a charge under this section if—
(a) it is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence; and
(b) the accused reasonably believed that the child was over the age of eighteen years.

The judge ruled that the accused should be let free because the minor, acted like an adult. “Having had sex from 2009- February 2011, the victim behaved like an adult and not a child who was being lured or seduced for the first time. She enjoyed the relationship and the pregnancy accidentally brought the relationship to an abrupt end.”

Now let’s put this case on context. Malindi, on the Kenyan coast is famous for its sex tourism and child pornography. As this article by the BBC states: Kenya’s coastal town of Malindi may look like a tropical paradise but is host to a hidden child sex trade. Children as young as 12 say they are being lured into prostitution and pornography by tourists willing to pay handsomely for sex in secret locations.

Yet another article by Parselelo Kantai in the Africa Report says that a culture of early marriages in the community morphed, driven by tourism, into a child sex trafficking industry.

It is cases like these that informs the work of organizations like Art and Abolition. They rescue girls who have been driven to sexual slavery due to poverty.

Back to the case. Even though children nowadays grow very fast. How can one mistake a 13 year old for an adult? In the children’s Act, a “child” means any human being under the age of eighteen years. In counseling, Children who are sexually active are referred to as mature minors. But all the same, they are still minors. I hope the case will be prosecuted accordingly.

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