High Court rules Sexual Offences Act should not criminalise consensual sex between close-in-age teens

Judge Bahati Mwamuye held that the enforcement of Sections 8, 9 and 11 of the Sexual Offences Act against adolescents engaged in consensual and non-exploitative conduct violates constitutional rights including equality, dignity, privacy, health and the rights of children.

“In the final analysis, the petition succeeds in substantial parts,” the judge ruled, adding that the law “must be read in a manner consistent with the Constitution” and enforced in line with constitutional values.

The court found that criminal sanctions should not apply where there is no evidence of exploitation, coercion, abuse or power imbalance between adolescents of close age proximity.

As part of the orders, the court directed investigative, prosecutorial and enforcement agencies to distinguish between consensual adolescent peer relationships and cases involving coercion, exploitation, abuse or unequal power dynamics when handling sexual offence cases involving minors.

The Office of the Director of Public Prosecutions was further ordered to formalise, publish and gazette prosecutorial guidelines on the handling of consensual adolescent peer relationship cases to ensure transparency, consistency and compliance with constitutional standards.

The National Police Service was also directed to review and align its arrest and investigative procedures in sexual offences involving minors with the constitutional principles outlined in the judgment.

In addition, the court ordered relevant state agencies responsible for health, education and child protection to develop coordinated policies that guarantee adolescents access to sexual and reproductive health information and services without fear of criminalisation.

The court confirmed conservatory orders earlier issued in August 2025 staying proceedings in the affected criminal cases and permanently halted the prosecution of two cases before the Makadara Law Courts to the extent that they involved consensual, non-coercive and non-exploitative adolescent conduct.