Kenya - Age of Sexual Consent
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KENYA LAWS: 1. Homosexual activity is strictly forbidden, punishable with up to 14 years
in prison.
NOTE: 1. Daniel arap Moi, President of Kenya, is extremely anti-homosexual.
Source: http://www.interpol.int/Public/Children/SexualAbuse/NationalLaws/
Kenya - Kenia Nairobi
I. Ages for legal purposes
Age of simple majority
The legal age of majority is eighteen (18) years. However, although Kenyan concept of age
of
majority is in line wiht the UN Convention on the Rights of the Child, several other
statutes in force
in Kenya listed below set lower ages. The effect has often deprived persons under the age
of
eighteen (18) years essential protection.
1) The Penal Code CAP. 63, criminal responsibility (below 8-12 years)
2) Children and Young Persons Act CAP. 141, a child is defined as under fourteen (14)
years.
3) Employment Act CAP. 266, under sixteen (16) years.
4) Matrimonial Causes Act CAP. 152, under sixteen (16) years.
Age of consent for sexual activity
Section 143 of the Penal Code CAP. 63 stipulates that
" Any person who unlawfully takes an unmarried girl under the age of sixteen (16)
years out of custody or protection of her father or mother, or other person, takes away or
detains her against her will, is guilty of a felony and is liable to imprisonment for
seven years. "
From the above stipulation, the " age of consent sexual activity is therefore sixteen
(16) years ".
Section 14, Paragraph 3 of the Penal Code CAP. 63 stipulates that
" A male person under the age of twelve (12) years is presumed to be incapable of
having carnal knowledge. "
Age of consent for marriage
Section 19 of the Marriage Act CAP. 150 states that :
" If either party to an intended marriage, not being a widower or widow, is under
twenty-one (21) years of age, no licence shall be granted or certificate issued
unless there is produced annexed to the affidavit, a written consent to the intended
marriage signed by the person having lawful custody of any such party. "
II. Rape
‘Definition of rape’, Section 139 of the Penal Code, CAP. 139
" Any person who has unlawful carnal knowledge of a woman or girl, without her
consent, or
with her consent if the consent is obtained by force or by means of threats or
intimidation of any
kind, or by fear of bodily harm, or by means of false representations as to the nature of
the act, or,
in the case of a married woman, by personating her husband, is guilty of the felony termed
rape. "
‘Punishment of rape’, Section 140 of the Penal Code, CAP. 63
" Any person who commits the offence of rape is liable to imprisonment with hard
labour for life,
with or without corporal punishment. "
‘Attempted rape’, Section 141 of the Penal Code, CAP. 63
" Any person who attempts to commit rape is guilty of a felony and is liable to
imprisonment with
hard labour for life, with or without corporal punishment. "
III. Other forms of child sex abuse
‘Knowledge of age of female immaterial’, Section 161 of the Penal Code, CAP. 63
" Except as otherwise expressly stated, it is immaterial in the case of any of the
offences committed
with respect to a woman or girl under a specified age that the accused person did not know
that
the woman or girl was under that age, or believed that she was not under that age. "
‘Abduction’, Section 142 of the Penal Code, CAP. 63
" Any person who, with intent to marry or carnally know a woman of any age, or to
cause her to be
married or carnally known by any other person, takes her away, or detains her, against her
will, is
guilty of a felony and is liable to imprisonment for seven years. "
‘Abduction of girls under sixteen (16) years of age’, Section 143 of the Penal
Code, CAP. 63
" Any person who unlawfully takes an unmarried girl under the age of sixteen (16)
years out of the
custody or protection of her father or mother, or other person having the lawful care or
charge of
her, and against the will of the father or mother or other person, is guilty of a
misdemeanour. "
‘Indecent assault on females’, Section 144 of the Penal Code, CAP. 63
" (1) Any person who unlawfully and indecently assaults any woman or girl is guilty
of a felony and
is liable to imprisonment with hard labour for five years, with or without corporal
punishment.
(2) It shall be no defence to a charge for an indecent assault on a girl under the age of
fourteen
(14) years to prove that she consented to the act of indecency ;
Provided that it shall be a sufficient defence to any charge under this subsection if it
is made to
appear to the court before whom the charge is brought that the person so charged had
reasonable cause to believe and did in fact believe that the girl was of or above the age
of
fourteen (14) years or was his wife."
‘Defilement of girls under fourteen (14) years of age’, Section 145 of the Penal
Code, CAP. 63
" (1) Any person who unlawfully and carnally knows any girl under the age of fourteen
(14) years is
guilty of a felony and is liable to imprisonment with hard labour for fourteen years
together with
corporal punishment.
(2) Any person who attempts to have unlawful carnal knowledge of a girl under the age of
fourteen (14) years is guilty of a felony and is liable to imprisonment with hard labour
for five
years, with or without corporal punishment ;
Provided that it shall be a sufficient defence to any charge under this section if it is
made to
appear to the court before whom the charge is brought that the person so charged had
reasonable cause to believe and did in fact believe that the girl was of or above the age
of
fourteen (14) years or was his wife. "
‘Detention of females for immoral purposes’, Section 151 of the Penal Code, CAP.
63
" (1) Any person who detains any woman or girl against her will-
a) in or upon any premises with intent that she may by unlawfully and carnally known by
any man, whether any particular man or generally ; or
b) in any brothel,
-is guilty of a misdemeanour.
(2) When a woman or girl is in or upon any premises for the purpose of having any unlawful
carnal connection, or is in any brothel, a person shall be deemed to detain that woman or
girl in
or upon those premises or in the brothel if, with intent to compel or induce her to remain
in or
upon the premises or in the brothel, such person withholds from the woman or girl any
wearing
apparel or other property belonging to her, or where wearing apparel has been lent or
otherwise
supplied to the woman or girl or by the directions of such person, such person threatens
such
woman or girl with legal proceedings if she takes away with her the wearing apparel so
lent or
supplied. "
‘Indecent assault of boys under fourteen (14) years of age’, Section 164 of the
Penal Code, CAP. 63
" Any person who unlawfully and indecently assault a boy under the age of fourteen
(14) years is
guilty of a felony and is liable to imprisonment for seven years, with or without corporal
punishment. "
‘Incest by males’, Section 166 of the Penal Code, CAP. 63
" (1) Any male person who has carnal knowledge of a female person who is to his
knowledge his
granddaughter, sister or mother is guilty of a felony and is liable to imprisonment for
five years ;
Provided that, if it is alleged in the information or charge and proved that the
female person is under the age of thirteen (13) years, the offender shall be liable to
imprisonment for life.
(2) It is immaterial that the carnal knowledge was had with the consent of the female
person.
(3) If any male person attempts to commit any such offence as aforesaid, he is guilty of a
misdemeanour.
(4) On conviction before any court of any male person of an offence under this section, or
of an
attempt to commit the same, against any female under the age of twenty-one (21) years, it
shall be
in the power of the court to divest the offender of all authority over such female, and,
if the
offender is the guardian of such female, to remove the offender from such guardianship,
and in any
such case to appoint any person or persons to be the guardian or guardians of such female
during
her minority or less period ;
Provided that the High Court may at any time vary or rescind the order by the
appointment of any other person as such guardian, or in any other respect. "
‘Incest by females’, Section 167 of the Penal Code, CAP. 63
" Any female person of or above the age of sixteen (16) years who with her consent
permits her
grandfather, father, brother or son to have carnal knowledge of her (knowing him to be her
grandfather, father, brother or son, as the case may be) is guilty of a felony and is
liable to
imprisonment for five years. "
IV. Child prostitution
This is being evidenced among street girls who engage themselves in activities such as
hawking or
begging during the day and later switch to prostitution at night. This is, however, a very
hidden
phenomenon.
‘Procuration’, Section 147 of the Penal Code, CAP. 63
" Any person who-
a) procures or attempts to procure any girl or woman under the age of twenty-one
(21) year to have unlawful carnal connection, either in Kenya or elsewhere, with
any other person or persons ; or
b) procures or attempts to procure any woman or girl to become, either in Kenya
or elsewhere, a common prostitute ; or
c) procures or attempts to procure any woman or girl to leave Kenya, with intent
that she may become an inmate of or frequent a brothel elsewhere ; or
d) procures or attempts to procure any woman or girl to leave her usual place of
abode in Kenya, with intent that she may for the purposes of prostitution become
an inmate of or frequent a brothel either in Kenya or elsewhere,
-is guilty of a misdemeanour and, subject to the provisions of section 27, may, at the
discretion of
the court, and in addition to any term of imprisonment awarded in respect of the said
offence, be
sentenced to corporal punishment ;
Provided that no person shall be convicted of an offence under this section upon the
evidence of
one witness only, unless the witness is corroborated in some material particular by
evidence
implicating the accused. "
‘Procuring defilement by threats or fraud or administrating drugs’, Section 148
of the Penal Code, CAP. 63
" Any person who-
a) by threats or intimidation procures or attempts to procure any woman or girl to
have unlawful carnal connection, either in Kenya or elsewhere ; or
b) by false pretences or false representations procures any woman, or girl to have
unlawful carnal connection, either in Kenya or elsewhere ; or
c) applies, administers to or causes to be taken by any woman or girl any drug,
matter or thing, with intent to stupefy or overpower so as thereby to enable any
person to have unlawful carnal connection with the woman or girl,
-is guilty of a misdemeanour ;
Provided that no person shall be convicted of an offence under this section upon the
evidence of
one witness only, unless the witness be corroborated in some material particular by
evidence
implicating the accused. "
‘Householder, etc., permitting defilement of a girl under thirteen (13) years of
age’, Section 149 of the Penal
Code, CAP. 63
" Any person who, being the owner or occupier of premises or having or acting or
assisting in the
management or control thereof, induces or knowingly suffers any girl under the age of
thirteen
(13) years to resort to or be upon, those premises for the purpose of being unlawfully and
carnally
known by any man, whether the carnal knowledge is intended to be with any particular man
or
generally, is guilty of a felony and is liable to imprisonment for five years ;
Provided that it shall be a sufficient defence to a charge under this section if it is
made to appear
to the court before whom the charge is brought that the person so charged had reasonable
cause
to believe and did in fact believe that the girl was of or above the age of thirteen (13)
years. "
‘Householder, etc. permitting defilement of girl under sixteen (16) years of
age’, Section 150 of the Penal Code,
CAP. 63 :
" Any person who, being the owner or occupier of premises, or having or acting or
assisting in the
management or control thereof, induces or knowingly suffers any girl above the age of
thirteen
(13) years and under the age of sixteen (16) years to resort to or be upon those premises
for the
purpose of being unlawfully and carnally known by any man, whether the carnal knowledge is
intended to be with any particular man or generally, is guilty of a misdemeanour ;
Provided that it shall be a sufficient defence to any charge under this section if it is
made to
appear to the court before whom the charge is brought that the person so charged had
reasonable cause to believe and did in fact believe that the girl was of or above the age
of sixteen
(16) years. "
‘Conspiracy to defile’, Section 157 of the Penal Code, CAP. 63
" Any person who conspires with another to induce any woman or girl, by means of any
false
pretence or other fraudulent means, to permit any man to have unlawful carnal knowledge of
her is
guilty of a felony and is liable to imprisonment for three years, with or without corporal
punishment. "
‘Male person living on earnings of prostitution or soliciting’, Section 153 of
the Penal Code, CAP. 63
" (1) Every male person who-
a) knowingly lives wholly or in part on the earnings of prostitution ; or
b) in any public place persistently solicits or importunes for immoral purposes,
-is guilty of a misdemeanour ; and in the case of a second or subsequent conviction under
this
section the court may, in addition to any term of imprisonment awarded, sentence the
offender to
corporal punishment.
(2) Where a male person is proved to live with or to be habitually in the company of a
prostitute
or is proved to have exercised control, direction or influence over the movements of a
prostitute in
such a manner as to show that he is aiding, abetting or compelling her prostitution with
any
other person, or generally, he shall unless he satisfies the court to the contrary be
deemed to be
knowingly living on the earnings of prostitution. "
‘Woman living on earnings of prostitution or aiding, etc., prostitution’,
Section 154 of the Penal Code, CAP. 63
" Every woman who knowingly lives wholly or in part on the earnings of prostitution,
or who is
proved to have, for the purpose of gain, exercised control, direction or influence over
the
movements of a prostitute in such a manner as to show that she is aiding, abetting or
compelling
her prostitution with any person, or generally, is guilty of a misdemeanour. "
V. Child pornography
The Kenyan law on pornography is codified and applies without distinction both to minors
and adults.
First, there is the power of the minister to declare a publication which, in his opinion,
is not in the
interests of public morals, prohibited. This power is contained in Section 52 of the Penal
Code, CAP
63 Laws of Kenya.
The power given to the minister protects both the child/minor and adult from exposure to
publications which are morally decadent. Once the publication is prohibited, it cannot
reach the
public including minors.
A penal provision is made in Section 53(1) of the Penal Code. Under this provision,
printing,
importation, making, publishing, supplying, selling or offering for sale, distributing,
reproducing or
being in possession of a publication which the Minister has declared prohibited under
Section 52
Penal Code, is a criminal offence punishable with imprisonment for a term not exceeding
three years.