Legal Framework on sexual gender based violence: Sexual Offenses Act, 2006 and Children’s Act, 2001

Sexual Offenses Act, 2006

The journey to the formation of this Act started when Hon. Njoki Ndung’u moved the motion seeking to introduce the private members motion in December 2004. Among the punishments proposed by the first draft was the castration of rapists. This did not go well with most of the male parliamentarians of course. In April 2005, the motion was passed with amendments as proposed. The SOA came into force as law in Kenya in July 2006. This is the most comprehensive law on SGBV in Kenya. Some of the key highlights of this Act are;

  • Expanded definition of sexual offences i.e. rape and defilement including both sexes.
  • Introduction of 14 new sexual offences.
  • Created minimum and maximum mandatory sentences
  • Enhanced and stiffer penalties for sentences for sexual offences
  • Limited requirement on burden of proof for the victims.
  • Establishment of register of sexual offenders at the high court.
  • Setting up of a DNA data bank and a paedophile registry.

In a nutshell, some of the offences and penalties prescribed in the SOA include;

  • Child prostitution-Imprisonment of not less than 10yrs
  • Child pornography– Imprisonment of not less than 6yrs or fine of kshs.500,000/=
  • Rape– Not less than 10 years and can be enhanced life
  • Attempted Rape– Imprisonment of not less than 5 years and can be enhanced to life
  • Sexual Assault– Imprisonment of not less than 10 years and can be enhanced to life
  • Compelled or induced acts-Prison term of 10 years

For the successful implementation of the law, it requires multi-sectoral concerted efforts of doctors, police, judicial officers, and members of public.

Though there has not been adequate capacity building of law enforcement officers who need to be trained on how to adequately handle cases of gender based violence, Civil Society Organizations have actively worked to educate the public.

Children’s Act, 2001

The Government of Kenya enacted the Children Act in 2001 to, among other things; consolidate the laws on children in Kenya and to domesticate the United Nation Convention on the Rights of the Child (UNCRC) and the African Charter on the Rights and Welfare of the Child (ACRWC) which the State had ratified in 1989 and 2000 respectively.

The Act is divided into 14 Parts with 200 Sections and 9 Schedules and these address the rights a child is entitled to and the role of the government, parents and other duty bearers in ensuring children enjoy the rights. The rights are interdependent and apply to all children without distinction or discrimination.

They are classified as life and survival, development, protection and participation rights. The implementation of these rights is guided by the key principles of the best interests of the child[1] and non – discrimination.[2] The Act addresses issues of Female Genital Mutilation, Sexual Abuse, Child labour and Early Marriage among children.

Though this Act has been in force since March 2003, the National Child Protection Policy was only recently[3] developed to enhance its enforcement.   Initiatives by the National Government to ensure its effective rolling out to benefit the intended beneficiaries   have not been matched with resources both financially and technically. Hopefully, the policy will go a long way in assisting the country to fully implement the Children’s Act and to have a functional child protection system.

 Note:

[1] In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of children shall be a primary consideration.

[2] Non–Discrimination – No child shall be subjected to discrimination on the ground of origin, sex, religion, creed, custom, language, opinion, conscience, colour, birth, social, political, economic or other status, race, disability, tribe, residence or local connection.

[3] The policy was developed in November, 2011.

By:

Ashioya Biko

Legal Officer, Kituo Cha Sheria

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