What Romeo & Juliet Ruling Means For Kenyan Teens | Wakili Martin Onyango

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[00:00:00]Our next conversation is going to be about something that actually has been brewing and bubbling under. Mhm.

[00:00:06]Conversations in the society for a while now. Ever since we saw the introduction of the sexual offenses act and the implementation of it and the further implementation of that debate started emerging.

[00:00:17]>> Mhm.

[00:00:18]And a case was taken to court and the High Court through petition that was filed last year Mhm. has actually released a judgement protecting adolescents engaged in consensual, non-coercive, and non-exploitative peer sexual relationship from arrest and prosecution.

[00:00:38]>> Mhm. Again, adolescents, number one, Mhm.

[00:00:42]engaged in consensual, non-coercive, and non-exploitative peer sexual relations being protected from arrest and prosecution.

[00:00:52]>> Mhm. What exactly does that mean?

[00:00:54]>> Mhm. One of the advocates who was involved very much in this particular petition is Martin Ojao. Mhm.

[00:01:00]>> And he joins us in the studio now.

[00:01:01]Martin, good morning. Good morning, Latif. Asante sana for joining us. Thank you. It's a pleasure joining you for this conversation.

[00:01:07]>> You are as great.

[00:01:08]>> [laughter] >> We are great.

[00:01:12]Flaris is going to welcome you with the day's quote. Yeah, absolutely. Karibu sana. So, today's quote is by Flannery O'Connor and it says, "The truth does not change according to our ability to stomach it."

[00:01:24]"The truth does not change according to our ability to stomach it." How do you process that quote?

[00:01:31]I mean, the truth is the truth. So, whether you're ready to accept it as it is or you're not ready, that does not change the fact. And I think this really aligns with the conversation we are to have this morning. That it is what it is. We really need to accept it as it is and we just need to, as we say, fix the nation. Let us do the things we've been avoiding to do over the period. And the court has just called us to wake up that you can never pass the ball to other people. Very good. All of us must do the right thing. Very good. Martin, we have a very short time. We have like about 20 minutes imagine for this conversation.

[00:02:05]Sadly, so let's get straight into it.

[00:02:07]What is this case? What was this petition?

[00:02:10]And why? Mhm.

[00:02:11]So, this petition was uh around an issue that has been in this country for a long time. We all acknowledge that uh our largest population is adolescent. That is the largest population in this country. But, the adolescent is faced by a myriad of issues. It is a an important developmental stage. It is a stage where they set uh the the foundation for either good health or bad health, but also education and prosperity for the future. But, uh this is also the time when uh puberty sets in. Uh normal relations set in including sexual relations among peers. But, also we acknowledge that coercion and exploitation happens during this period.

[00:02:51]So, the case that went to court involved three children. I want to specifically use the word children. Adolescence is a period between 10 to 19. Those who fall from 10 to 18 are children. So, these children uh they were two boys and one girl.

[00:03:14]The two of them the two boys had been charged in two separate cases before the magistrate court in Kakamega. The first boy had a girlfriend.

[00:03:26]And they were the boys from a poor background. The girl is equally from a poor background.

[00:03:32]But, and they lived in the same neighborhood.

[00:03:35]And the boy and the girl became friends.

[00:03:38]The girl was facing a bit of challenges with the guardian. And they developed uh a friendship where they kept supporting each other including on when we have a meal at our house we can share. And at one point when the girl found it difficult to continue living in their house, the girl left and they left with the boy. The boy actually told the girl that my mother lives somewhere. My mother can provide us a protective space. And they moved in their boyfriend-girlfriend.

[00:04:08]The mother or the guardian to the girl reported uh disappearance and the boy was uh subsequently traced and arrested together with the girl, taken to a police station, and the boy was charged with defilement before the lower court in Makadara. The second boy again living in the same uh locality with a girlfriend. The girlfriend is in a boarding school. He's in a day school.

[00:04:34]The boyfriend gets arrested because the stepfather to the girl is not happy that he is the girl the boyfriend to the daughter.

[00:04:43]And he's taken to court. He's then forced to leave school. He's in custody for a a period of time. Gets released on bail. The girl drops out of school. The two of them now become a young family.

[00:04:58]But the boy is still undergoing prosecution before the magistrate's court in Makadara. And this is the case we then now took before the High Court.

[00:05:07]That where there is no crime. Here you have two young people below the age of 18 in a consensual, in a non-exploitative, in a non-coercive relationship where there is no power imbalance. And they're being then processed as criminals. And what that does is that one, there's no going to school. Two, there's no uh supportive framework in the family.

[00:05:32]Three, because you're being treated as a criminal, you can no longer approach the health system and say, "I am a young person. I am engaging in a sexual relationship. How do I protect myself?

[00:05:46]How do we keep safe? You are no longer able to present yourself before a healthcare provider because you know when you show up, you'll then be charged. And predominantly you see like in these cases the boy gets charged. In the second case, the girlfriend was also dragged to court as a witness against the boyfriend.

[00:06:09]And then in the course of trial after being in court for about 2 years, the prosecutor realizes that we charged these people but at the time we were charging them, they were children. So they bring in guidelines around diversion that we now take them away from the criminal justice system. They decided to withdraw the charges.

[00:06:30]But at this time they were withdrawing the charges when now the case has been brought before the the constitutional court because what is happening in essence is a violation of the same rights that the constitution has agreed has guaranteed to all of us, whether we are children or we are adults, the right to privacy, the right to dignity, the right to equal treatment and protection under the law, the right to access healthcare services. So that in the absence of what makes your conduct a crime, you should not be turned into a criminal.

[00:07:05]I like that's a really good contextualization.

[00:07:09]Let me begin by asking what was the age gap between the children in both of these cases?

[00:07:17]For the first case, the boy was 16 was 17 years, the girl was 17. Okay.

[00:07:26]In the second case, the girl was older.

[00:07:29]The girl was 17 and the boy was 16.

[00:07:33]But in both cases, it is the boys who are charged. Right.

[00:07:38]But you also realize that there is a power dynamics that in both situations, it is the boy who was from the less financially endowed family. And that also becomes a conversation that against whom are the criminal complaints always lodged? And who then suffers the injustice by the inconsistent application of the law. That it is predominantly the poor person who then gets subjected to the criminal justice system. When they are charged with defilement, what is Why is the charge preferred on the boys?

[00:08:17]What's the explanation there?

[00:08:19]Given that they're both minors. I think the the courts in this country have struggled with that. And I think Justice Helen Amondi sometime in in Homa Bay said, "If you are to charge them, if at all a crime has been committed, then both of them must be criminals. They defiled each other."

[00:08:38]>> [clears throat] >> I think Justice Fred Ochieng also sitting somewhere in Eldoret also said, "No, while the law as on the face of it does not lay a heavier burden on the boy, it is just its application that has been incorrect." But you also remember that retired Justice Maraga at one point said, "Kenya must have a conversation about its young men languishing in in prisons simply because they engage in a consensual relationship with their peers. That we must address this problem." And so in in in the entire framework, there has been an acknowledgement that there is a problem we need to fix.

[00:09:26]There has just never been one an opportunity for the courts to address the specific issues causing the challenge. But also two, then now our lawmakers have also not taken up the challenge to deal with a problem that arises out of the implementation of a genuine provision of the of the law, the sexual offenses law, that [clears throat] was meant to protect.

[00:09:52]So, rather than protecting, it is putting a large population at a disadvantage. It is failing to protect the same people it was meant to protect.

[00:10:02]>> Eric and a lot of questions, but just my last one. What is the threshold for proving defilement under the law?

[00:10:12]Yes, if you look at section eight on the offense of defilement under the Sexual Offenses Act, nine on attempted defilement, and 11 on an indecent act with with a child.

[00:10:31]For defilement, you only need to prove that there was a penetration.

[00:10:39]On attempted defilement, you only need to prove that there was an attempt to have that penetration.

[00:10:46]On indecent act with a child, you only need to establish that although there was no penetration, there was an act that is indecent with a child. So, you realize that these offenses the law already sets a very high bar that if a penetration or attempted penetration can be evidenced, you are automatically guilty irrespective of the circumstances when that arose. And that is what now the High Court has clarified.

[00:11:18]That in the absence of coercion, in the absence of exploitation, when the two are of close age, and when they both agree, you cannot subject them to the criminal justice system. But, there's something that is significant, and to me, that is where Kenyans have been avoiding. What we need to fix. What the court says that one, those who are responsible for education, those who are responsible for health, those who are responsible for child protection, we must now develop policies around sexuality education. We must develop policies around access to health, including for adolescent. We cannot have the largest population having no dedicated health services and information for their needs. And two, those who are responsible for protection of children. That one, where we have failed to provide them with education, where we have failed to provide them with health care services that they deserve, can we then put them in a protective environment where they can now get these services and then fulfill or grow to realize their full potential.

[00:12:38]That we cannot keep escaping our responsibilities as parents, as schools, as religious instructors, and let it leave it to the police and say, "Deal with them with the criminal justice system." The court is saying, "No, we must take our responsibility. We must address it head-on. We must address it head-on.

[00:12:57]Equip young people with information, equip them with skills, equip them with the necessary relevant health care services, but also the department, the public department responsible for child protection, must also be equipped that those who have failed to get that in their bringing, in their locality, must then get that safety net where they would still then be protected and access these services. We cannot leave it to court, we cannot leave it to the police, we cannot leave it to the director of public prosecution. It It can't be It can't be in the criminal justice system, basically. It says before that in the community something has to happen. This is a win for the very big proponents of sexual education in the country, right? And I think this is a vehicle that is a perfect vehicle.

[00:13:45]It has come It has landed nicely on our lap. Let's drive it, right? We should drive it, but also it's a wake-up call to those who oppose sexuality education.

[00:13:54]>> the thing now. Yes. Okay? So, it has brought in these two conversations at the same time.

[00:13:59]Is there a danger of one overpowering the other or one watering down the other? Many people have been opponents of anything to do with introduction of such education and reproductive health rights to children in any fair way, shape, or form, okay?

[00:14:17]Now, you've come in and said Yeah, it's a court judgment, okay? And here is what is happening in this particular Can you see injustice? Can you see injustice? And mixing them all together.

[00:14:29]I I say congratulations to actually the ones who drove it.

[00:14:32]>> [laughter] >> But it's going to bring an issue.

[00:14:35]I think it's not going to bring an issue. It is What the court has done is a wake-up call. What we have been running away from uh the 2026 economic survey is actually telling us that teen pregnancy Pregnancies among children has gone up by 10,000 from last year to this year. What is happening? At that time there was no judgment from the court.

[00:14:57]And it has been increasing over the years, and there has been no judgment.

[00:15:02]The law on uh sexual offenses has been there. So, the reality is that there's something we have avoided doing over the years that we must do. But also, too, that we cannot moralize the question of health. We cannot moralize the question of education. Let us focus on building the moral fabric, but also at the same time build a strong education and health systems to enable children grow into responsible adults. And that is what we've been avoiding. We all agree we all have the rights to information, the rights to health, but how to avail that to children has been a challenge. So we keep passing the back. So the court is saying that you are not going to pass the back to the criminal justice system.

[00:15:53]You must deal with it, whether it is through religious instructions, whether it is through education, you must inform or build the capacity of children to understand what is happening as they develop from puberty, adolescence to adulthood. And you must put in place the enabling health system environment to enable them access health care that they need without fearing that device show up, as a child, I need contraception, I will be charged or I will be treated as a criminal. That is what the court is saying that we must have that difficult conversation that we have been avoiding for years. If we avoid it, we cannot turn these children into criminals and now present them before judges and magistrates asking them to resolve a problem we know very well we need to deal with outside the justice system. Very true.

[00:16:48]>> want us to look at the law. Yeah. Now, members of parliament have to amend the Sexual Offences Act, correct?

[00:16:57]Um and for this to have any kind of legislative backing.

[00:17:02]Are we looking at a risk of when when we floor matters teenage pregnancies on the floor of parliament and it getting politicized, what would we be taking away from this conversation? Because we are looking at a house that has some members that have been accused of sexual offenses. Now, we're taking this back to them and saying we need to amend the sexual offenses act. There's a political angle in this.

[00:17:27]What is the risk we are running here even before we now get to the very implementation of the ruling has happened. Two teenagers have been taken to a police station in their locality.

[00:17:36]The police there to effect this kind of ruling.

[00:17:40]Thank you. Let's be clear that the court has not left adults off the hook. Adults are prohibited from engaging in any sexual relation with children. The court as that barrier that protective barrier has not been lifted. And two, again, the protection Technically, it has added a year.

[00:18:04]Uh and and 18 and 19 are adolescents.

[00:18:08]>> Yes. 18 and 19 are adults. So, what the court has done and if you look at the judges analysis >> Yeah. the judges acknowledged that that is a relevant conversation, but it was not placed before the judge under these circumstances because those who went before the judge found themselves all below 18. But if you logically carry that argument the reasoning in the court before the court in a subsequent case the judge judges may still agree that if you are you've turned 18 and your girlfriend is still 17, the court may still find that permissible. But in this instant, that has not been the case. But back to your question, adults are prohibited from engaging in any kind of sexual relation with children and you will be a direct subject to the harsh penalties under the sexual offenses act. Two, the court has not even asked parliament to change anything because what the court is saying is that the law as it is is not problematic. It is the application of the law to instances when it should not apply. That is the problem. The effect of application of that law. That is what the court has found to be unconstitutional. And that is why the court is calling on the director of public prosecutions. You cannot prosecute these people. The police, the moment you have a complaint and you start investigating and realize that these were children of close age, they were in a consensual non-coercive sexual relation, you must abandon the criminal justice process. So, what the court is doing is actually asking administrative and policy organs to do the right thing. Both the police, the directorate of criminal prosecution, the agencies responsible for education, health, and children protection. Because the framework is there. It is its application. So, the court is not saying go back to parliament because the framework parliament developed in itself has no problem.

[00:20:17]How it is applied.

[00:20:19]There is no need to amend the sexual offenses act. But there is absolute need to apply that sexual offenses act in line with the constitutional protection of children. Okay. Understood.

[00:20:32]I was going to ask this to Ivan Awere who's a child psychologist. We just had her on.

[00:20:38]The basis of the law and when there's cases of defilement, it's a minor cannot consent.

[00:20:45]Essentially, I I could be wrong, but that is the basis of upon which people are tried, especially as an adult, engaging in any form of anything sexual with a minor. It's they're not in a position to consent in an informed way.

[00:21:01]So, then now when we have this Romeo Juliet situations, what's the threshold for consent? I can understand coercion, I can understand uh exploitation. Yeah, consent, how do we We've We already said you can't consent, but now it's like, okay, can you I Yeah, just trying to understand.

[00:21:19]I think what the court has demystified is the conception that children have no ability to agree to certain things if they are in an environment where they are of the same age, of the same predisposition, there is no coercion, there is no exploitation, there is no power imbalance. The court is actually dismantling that. And if you look at the provisions of the Sexual Offences Act that were presented before the court, it included sections 8, 9, 11, and 43. Section 43 of the Sexual Offences Act now describe circumstances when there can be consent or when there is no consent, applying both to adults and children. And remember, and this is a conversation that Kenyans must accept that the fundamental rights and freedoms in our constitution do not belong to adults only. They are rights of all people, Yeah. children and adults. And what the court is actually making us to be alive to that we cannot use those provisions of the Sexual Offences Act to take away the rights of children and assume that they are not people with rights until they become 18.

[00:22:42]The court is saying that under the right circumstances, under the right environment, children have ability to make decisions Yeah. about their welfare. And the court talked about what we call evolving capacity.

[00:22:57]Do you know that actually a child can testify against you and you're sent to prison for life.

[00:23:03]>> Yes. Yes. What capacity are they using to provide that evidence?

[00:23:06]>> Yeah. It is that they understand what happened. They are clear on what happened. They have not been coerced or intimidated to say what they are saying.

[00:23:14]>> Mhm.

[00:23:15]I want to throw a spanner in the works.

[00:23:17]Um matters consent.

[00:23:20]Consent can be withdrawn at any one point in the act and say, "I don't feel like this." Is that looked at as, you know, well determining consent and uh non-exploitative uh all of these things that have been set as conditions. Do we look at the point at which where this minor in the middle of this act or, you know, says yes, then says, "Actually, I don't to go through with it." And the act still proceeds.

[00:23:47]How then do we determine this consent or lack of it?

[00:23:51]>> disappeared? Yes. At what point do we withdraw consent? I think uh there's no different application for children and adults. The same uh application of when there is and when there was no consent for adults and children. When consent is withdrawn, it has been withdrawn irrespective of uh the age of whoever had consented. And that should apply. And that is why the court was also very clear that every situation must then every case must then be handled based on its unique facts. And that is why the guidance, the policy guidance, for example, uh by the director of public prosecution to uh prosecutors is very necessary so that they have the tools to make that determination. The same applies to the police. But remember, setting the environment starts from education, information, access to health care services. And that is why the court did not leave out uh the education sector, the uh health sector, and also the children services. So that you just don't say let the DPP expand his guidelines or the Attorney General expand policies on but it must also come down to the health sector, to the education sector and to the children's protection department.

[00:25:15]>> Right. I think this could be used if the right people, you know, take this judgement, we could see it do something very fundamental because you're absolutely right. I think across the world the countries with the most robust sex education have, for example, the lowest the highest age of sexual debut, meaning people engage in sex at a, you know, past their their their mid teens, 17, 18, 19 as opposed to here where we're dealing with a teenage pregnancy crisis and so many other things. Yeah. But then I want to just do have one last question. What happens when the age difference is bigger? This 16, 17, 17, 16 is easy, seems very, you know, cut and dry. Let's do five year age differences. And let me actually, cuz I also had the same, let me paint a picture of this difference, all right?

[00:26:03]So, economy is also a big issue in some of these countries where sex ed is introduced earlier. There's also the economic factor. The economic factor you can see in these particular two cases, the economic situation is actually having a big factor to play. Now, let's go into those communities where the social status is poor. You get a child by the age by the time they are turning 10, they are actually adults in their family. All right? If it's a girl, this is a girl who's already the firstborn, she's cooking for the children, she's, you know, she's the mother, she's the deputy mother of the house and in some cases she's the mother.

[00:26:37]She's the present mother. A boy of the same age in very many cases he is the present father, present big brother.

[00:26:44]Let's take this to a 19 year old boy.

[00:26:47]That's an adolescent, right? He's an he's an adult with an ID but he's an adolescent. This is a guy who has been out of school for 6 years.

[00:26:55]In a community he dropped out of school because of the social status. Has been out of school, has been working, has been working a boda boda, has, you know, done something amejenga kanyumba. He's starting himself out. And this is a girl who is 14.

[00:27:10]Dropping out of form two.

[00:27:12]Okay? In many cases in these communities you'll find they're dropping out of standard eight at 14, right?

[00:27:17]But they are an adult in their home.

[00:27:20]These are two adolescents.

[00:27:22]One There's an imbalance of power. One has some level of economic power than the other.

[00:27:28]But they're both children. Then there's one who is an adult in law, but also an adolescent in law. All right? Now, if there's a complaint that's brought by the parents of the girl that this 19-year-old has coerced our girl into engaging in sexual acts, and in fact even living together. How would this case be handled?

[00:27:53]Thank you. And I would put a disclaimer that the 18-19-year-old has been excluded deliberately by this decision by the judge pointing out that he knows this is relevant, but it was not the question before the court. Where there is a power imbalance, we are then talking about exploitation.

[00:28:14]We are talking about We are talking about coercion. There is no equality in the engagement. And remember the conditions that the court has set, and these conditions already exist in the Sexual Offenses Act. They are not It is not one of them.

[00:28:36]We are looking at a set of those conditions existing in in every circumstance.

[00:28:44]If there is exploitation while they with consent, it's a criminal conduct.

[00:28:51]If there is coercion to agree there is it's a criminal conduct. So, the court is saying and two, if the age is not close. And let's look at let's treat all of them together. That if the age disparity is big already on the face of it there's power imbalance.

[00:29:12]Unless and unless you might you can't demonstrate that actually it is the the the youngest that had the highest bargaining power in that conversation.

[00:29:23]And therefore should they should be treated as having the same predisposition in the bargain. And so the court [clears throat] is saying one, let the two be of close age.

[00:29:38]And close age is relative the circumstance. And then two, let there be no exploitation.

[00:29:46]And then let there be no coercion and let there be consent. Some of these things Wakili are subjective. They they they indeed subjective to each and every circumstance.

[00:29:56]>> There is somebody who will go to court and just say because this young boy who is 18 has a boda boda, dropped school in standard six, has been working and mtu mkubwa and he has a big body he has is exploiting this 16-year-old form three girl.

[00:30:11]And that may not necessarily be the case.

[00:30:15]You know the way I usually we have to end the conversation, but I realized the the issue with the law has to draw the line somewhere, right? So, the line unfortunately there's nothing that magically happens when you turn 18. It's not you become clever all of a sudden, you're qualified to vote on your 18th birthday suddenly you can drive. But the law has to draw the line somewhere. So, then the question becomes how we interpret that to not exploit young people regard I it's a big question but I think it's >> I just I just criminalize those who should not be criminalized. But also how we invest from the right time in providing the right education, the right information, and the right health care.

[00:30:55]So that we forestall actually what the decision calls upon the whole country is let us prevent occurrence of a problem before it happens. Let us put in place the necessary framework to ensure that children grow up in a protective, supportive environment that enables them to thrive in education, in health, and in their pursuit of success in the society. Absolutely. Um we'll definitely be having more of this conversation because it's really an after a lot of things matters education and every other thing that we need to do individual collective responsibility, communities, and all of that. Thank you so much and I want to wrap up by today's quote. The truth does not change according to ability to stomach it.

[00:31:43]>> it. Yeah.

[00:31:47]The truth [laughter] does not change according to your ability to stomach it.

[00:31:58]>> [laughter] >> And of course to Abdullahi our fixer from Garissa. Thank you so much. Thank you so much for the jerseys. We really do appreciate it.

[00:32:06]>> is Lenga. Abdullahi Lenga. Yeah. Lenga chairman, yeah. Kijana Garissa. Uh habari ndio hiyo. Until Monday it's been real. Hillary Songboy, Eric Latiff, Maryam Bashar bringing this to a close. Up next is [music] Brenda Sellie and Claude Nyasabwa on Nation FM as they turn a year old. Happy birthday, guys.

[00:32:25]And your world leo mambo ni entertainment. Tunaona kuna ringtone in the house, kuna DJ Kulli, what?

[00:32:32]Kullister?

[00:32:33]Trying to get his name, yes. Leo mambo ni entertainment. Kullister. There we have it.

[00:32:39]Take care of yourselves. Okay.

[00:32:42]Take care of yourselves.