KUDYA J: This review judgment deals with the issue of
whether under s 70 (1) (a) of the Criminal Law (Codification and Reform) Act [Cap 9:23], a male young person can be
competently convicted of engaging in extra-marital sexual intercourse with a
female young person.
The facts in the present case were that
in April 2009 the 15 year old CF who was in Form 3 fell in love with a 14 year
old form 1 girl at a secondary school where they were both attending. They
first had consensual sexual intercourse in July 2009 and thereafter continued
to do so on divers' occasions. The matter came to light when the girl fell
pregnant.
The boy was charged and convicted on
his own plea of guilty of contravening s 70 (1) (a) of the Criminal Law Code.
He was sentenced on 14 May 2010 to receive a moderate corporal punishment of 3
cuts with a rattan cane to be administered in private by a designated prison
officer. The sentence was duly carried
out even before the record was submitted on review. On 9 July 2009 I asked the
trial magistrate whether the conviction was competent at law. His terse
response of 10 December 2010 stated that:
“After going
through the relevant section and other literature, I concede that I erred in
convicting the accused person who is also a minor.”
I noted from my discussions with other
judges that it appeared that there were many such cases that were coming on
review. Accordingly, I wrote to the Attorney General on 4 February 2011 seeking
his opinion on the matter. I am indebted to his response of 8 April 2011, which
I reproduce hereunder:
The
probation officer's report, which forms part of the record had the following
findings and recommendations:
“Both juveniles
will benefit from pre-marital sex counseling as they are both victims of it. Taking
the girl to live with the boy would not yield fruitful results as they are both
children who still need parental guidance to grow up physically and
emotionally. In view of the above highlights, it is respectively recommended
that the charges be dropped and the juvenile continue in school, [which] will
guarantee a brighter future to and better control of the juvenile.
Notwithstanding
the probation officer's recommendations, both the trial prosecutor and the
presiding magistrate seem not to have paid any due regard to the probation
officer's report.
Be that as it
may we have noted that s 61 of the Act defines “young person” as “a boy or girl under the age of sixteen
years.” The offence in s 70 of the Act seeks to protect young persons from
adults who take advantage of their immaturity by engaging with them in extra
marital sexual activities. It is envisaged that young persons are not mature
enough to appreciate the consequences of such activities. That is why the
probationer officer remarked that both the boy and girl were victims of
pre-marital sex.
It is clear from
the wording of the legislation that not only girls are protected but young male
persons are protected as well. In short, no offence is created where a young
male person engages a young female person in any consensual sexual act. See the
remarks of NDOU J in S v Juvenile
(RPS) HC 18/03 that:
'Whilst it might
be a bitter pill to swallow for parents, youngsters aged under sixteen can
freely indulge in sexual activities outside criminal sanction of the Sexual
Offences Act as long as the sexual act is consensual. This does not seem ideal
in this era of HIV/AIDS. There is nothing criminal about accused's conduct
although morally and religiously reprehensible'.
The facts in
that case involved a 15 year old boy who had sexual intercourse with a 15 year
old girl. The conviction was set aside. The offence of having sexual
intercourse with a young person under the Sexual Offences Act , now repealed,
is the precursor to s 70 of the Criminal Law (Codification and Reform) Act [Cap 9:23]. However, s 70 of the Act did
not change the position pronounced by NDOU J, supra.
It is our
respectful view that if a proper consideration and due regard had been given to
the above cited case; prosecution would not have been warranted in the
circumstances.
Accordingly, the Attorney General is
unable to support the conviction.”
I agree with the observations and
conclusions of the Attorney General.
Unfortunately, the punishment that
was visited on the juvenile in this case cannot be reversed. There are only two
options that are open to me on review in these circumstances. The first is to
quash the proceedings and set aside the sentence so that the juvenile is not
saddled with a criminal record. The second is to prevent other similarly placed
juveniles from suffering the same fate as the present juvenile.
Accordingly, it is ordered that:
1. The
conviction and sentence imposed on the juvenile is hereby quashed;
2. The
Registrar is directed to bring this review judgment to the attention of both
the Chief Magistrate and the Director of Public Prosecutions for distribution
to both magistrates and prosecutors throughout the country.
CHITAKUNYE J: agrees………………………………..
