Romeo and Juliet: Teenage pregnancy- Who is Guilty?

Regardless of the age of the parents, if a child is born, it has it's own rights to parental care including all other rights. So,  who bores the burden when two minors engage in sexual activity and pregnancy is the outcome? Whose best interest should be prioritised? Should the boy proceed with their life normally while the girl's dreams are shuttered? Should the boy be imprisoned and the girl let free? 

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When the law is clear cut that it is defilement if one of the party engaging in sex is 18 years and above, it is still confusing and the law remains silent when both party are below 18 years. If two minors engage in sexual activity resulting in pregnancy, the courts have recently been exercising restraint in sentencing minors in such cases. Traditionally, they boy has been prosecuted and probably jailed or fined for impregnating the girl. Although in some instances, the boy will move on their live especially education while the girl may have to drop out of school and become a single parent. Striking a balance in determining who is guilty or whose Best Interest should be upheld have been a challenge to many court. However, dispensing with these cases has been criticized as discriminatory against the boy child. While minors may claim consent and voluntariness, the courts maintain that a minor cannot legally consent to sex, and thus consensual sex between minors is unlawful.

In cases where minors are caught participating in consensual sex with each other, they may be charged with the offense of defilement and subjected to judicial proceedings. However, Chief Justice Martha Koome, while she was in charge of the National Council for Administrative Justice, suggested referring such children offenders to probation, rehabilitation, or reducing their sentences, depending on the circumstances of each case. She further suggests that cases of Romeo and Juliet should be first reported to the children's office for mediation.

While in most cases, the parents of the girl are usually aggrieved and run to the police, seeking professional mediation before subjecting the minors to the hostility of the lawsuit can be a middle ground. It is important to give a fair hearing and understand the circumstances before taking any legal action. If the case reaches the court, then the court should prioritize safeguarding the interests of both minors and determining whether there was consensual sexual activity between the children. Subjecting minors to the shame of court proceedings and wasting their time out of school should be avoided as much as possible.

If the girl decides to carry the pregnancy to term, she and the father of the baby may be required to provide financial support for the child once it is born. The child may also be entitled to support from the state, such as through child welfare services or social security programs. However, state support may be far from being a reality given the state prioritizes the most vulnerable children such as orphans, children with disabilities, children in conflict or refugee children. Top of Form

In Kenya, the law recognizes that sexual activity involving minors, defined as individuals under the age of 18, is a criminal offense. This includes sexual activity between two minors which means, the minors are legally eligile to be charged in court. However, the prosecution of minors for engaging in sexual activity is not as easy for the Kenyan government, and it is typically only pursued if the activity involved force or coercion, or if there is a large age difference between the individuals involved. The punishment for defilement is contingent on the age of the child involved. Offenders who engage with children aged 11 years or less are liable to a life sentence. If the child is between 12 to 15 years old, the minimum sentence is 20 years, while for those between 16 to 17 years old, the minimum sentence is 15 years.

Overall, while the legal and social ramifications of pregnancy between two minors in Kenya can be complex, the priority is typically on providing support and care for the mother and child. First and foremost, the two minors must receive appropriate psychosocial support and counseling to ensure the wellbeing and Best Interest of both parties. If the minors decide to keep the baby, they should be provided with support in terms of health care, legal assistance, and financial resources. They should also be connected to social services such as children’s officers and other organizations that can provide assistance with parenting, education, and employment. The minors should also receive guidance and counseling to help them understand the legal and social implications of their actions. Finally, the two minors should be connected to sex education programs to help them better understand the risks associated with engaging in sexual activity.