WHEN THE LAW MEETS YOUNG LOVE: KENYA'S HIGH COURT DRAWS A CONSTITUTIONAL LINE BETWEEN ADOLESCENT INTIMACY AND SEXUAL EXPLOITATION
A Critique by Gody Mwango (Advocate)
On 20th May 2026, the Kenyan High Court sitting at Milimani [“the Court”] (Mwamuye, J.) delivered a landmark ruling in the case HSO, AMO, TA & Another v The Attorney General and 3 Others, HCCHRPET/E490/2025. The court found that a strict (and blanket) application of the provisions of the Sexual Offences Act, No. 3 of 2006 (“the Act”, for short) to consensual, non-coercive sexual conduct between close-in-age adolescents is inconsistent with the Constitution of Kenya 2010. While the judgement is widely acknowledged in human rights circles, it is my thesis that it raises harder questions than its admirers are willing to admit.
The facts of the case are straight-forward. HSO, a seventeen year old teenager, was arrested alongside his sixteen-year-old partner after a missing person report and charged with defilement under Section 8 of the Act. In another case, AMO faced similar charges after a consensual relationship with TA, who was then seventeen years old, led to pregnancy and cohabitation. TA herself was never charged, but was at some point interrogated without a lawyer and forced to testify against her own partner. In both cases, charges were eventually dropped once prosecutors confirmed the accused were minors. The petitioners sued, arguing that withdrawal of charges did not cure the constitutional harm already done [19–21]. On the contrary, the Respondents urged that the matter was technically res judicata, effectively citing an earlier decision in CKW v Attorney General, Eldoret Petition 6 of 2023 to the effect that it conclusively settled the matter.
The petition raised one narrower issue: whether the Act’s application without differentiation between exploitative adult conduct and consensual peer relationships passed a proportionality analysis under Article 24 [19–123].
I surmise that the distinction highlighted in this core issue is sound. Less convincing is what the court did with it. In the petition, the learned Judge ruled that there were infringements of Articles 27, 28, 31, 43 and 53, which relate to dignity, equality, privacy, health and the best interests of the child, respectively. In effect, the court’s finding flowed from what the judge described as a regime that operates “without an internal mechanism to distinguish between conduct that causes harm and conduct that is developmentally consensual and non-exploitative” [136]. Yes, to my mind, the proportionality reasoning under Article 24 is carefully constructed, and the reliance on Teddy Bear Clinic for Abused Children v Minister of Justice (CCT 12/13) [2013] ZACC 35 is appropriate given how closely Kenya’s constitutional framework mirrors South Africa’s on these issues [138]. As a comparative rights jurisprudence, I do not quarrel with the destination. It is the route that troubles me, as I will analyse in the subsequent paragraphs.
The judgment instructed the DPP to immediately gazette its existing internal guidelines, the police to align their protocols, and the health and education ministries to develop adolescent-friendly service frameworks [184(D)–(F)]. Understandably, these are interpreted as structural orders towards the executive, effectively serving as the exercise of the court’s judicial authority in the most assertive sense. However, the court did not stop there. The learned Judge went further and declared Sections 8, 9, and 11 of the Act unconstitutional insofar as they apply to consensual peer conduct. All this was done without the intervention of the Parliament, for example, in a response through legislative enactment. On this basis, therefore, the argument by the Respondents that any perceived deficiencies or shortcomings in the legislative provisions fell squarely within the purview of Parliament and needed no judicial intervention received lesser engagement from the court than it deserved [57].
My main concern with the judgement, however, is contained in paragraph 180. Up until this point in the decision, the court’s entire premise is woven around the aspect of the unconstitutionality of criminalising conduct between adolescents of “close age proximity”. Curiously, the court then declined to clarify the exact meaning or remit of the phrase “close age proximity”, in effect leaving this definition at the mercy of the DPP, police and other agencies to work out among themselves. That is an important gap in the court’s interpretation of the law, which could build or break the substratum or “soundness” of the entire judgment.
Crucially, a declaration of unconstitutionality of statutory provisions that hinges on a terminology the court failed to define does not provide sufficient and reliable guidance to the police officer on the ground, the prosecutor reviewing a file, or the magistrate taking a plea. So, essentially, such a declaration yields the very inconsistent and discretion-heavy type of enforcement which the court sought to prevent in the very first place. The court has a constitutional authority to find these provisions overbroad. But that is not all – it is arguable that the court also had an obligation to clearly delineate the boundaries of the exception it purported to carve out.
The court emphasized that the DPP already had an unpublished internal policy against prosecuting minors [150]. This finding is candidly striking and damning in these circumstances. For instance, had the said policy been applied consistently, it would have averted both sets of proceedings the petitioners were subjected to. To this extent, the court’s finding was sound in ordering that the policy be formalized. But with the same token of precision, the finding highlights a relatively uncomfortable question which the judgment fails to address: if the substratum of the entire case was an enforcement problem as opposed to statutory design, how would the court justify an unconstitutionality declaration against the provision of the primary Act itself? Curious, right?
In conclusion, none of this is to claim that the petitioners deserved the wrong that was visited upon them; they did not. The harm suffered by the petitioners was real, and there were constitutionally disproportionate conducts by the prosecution which justified appropriate structural orders as directed by the court. But there exists a distinction between a court rewriting a statute, say due to the failure by the Parliament, and a court sitting to correct a failure in enforcement of a policy. This judgment by Mwamuye J. does important work in developing Kenya’s sexual offence jurisprudence to align it with international best standards. Whether it stays within proper judicial limits is a question worth sitting with.
©Gody Mwango (Advocate). The author practises at the intersection of constitutional and human rights law.