This Zero-sum game reflects our cowardice

Can two opposing teams arrive at an outcome that benefits both of them? Is “win-win” merely a cliché? A friend of mine, Nguru Karugu, recently told me of a training he attended a month or so ago. In the training they were advised to begin difficult negotiations by recognizing and debating the “elephant in the room.” That is what I attempt to do in this article.

In my job I deal with many challenges relating HIV among Key Populations (that is Sex workers, MSM and PWID). These challenges include, few available services focusing on their distinctive needs, stigma including and especially self-stigma, and violence. But it is their criminalization that always takes centre stage. Indeed criminalization is like a fly at the end of the nose, which no matter how big the other challenges are; it is the one bothersome challenge that cries to be addressed first. 

And that is why I ask, does this discussion always have to be a zero-sum game? Are we as Kenyans (and especially our leaders) totally lacking in imagination and initiative that talk about the same problem day in, day out? Sometimes this can be so exhausting and draining!

That is why after looking through the criminalization of MSM (I will write a follow-up article on Sex workers & PWID), I realize we can actually square this circle. It is my hope that someone in Government can pick up these suggestions and effectuate them! The Matrix below provides what I think could address this challenge once and for all, so that we can move on to more substantive issues. Below the matrix, are sections of the sexual offenses act, quoted in the matrix. We however have to be willing to engage in a “win-win” encounter.

Section	Current position	Amended position	Explanation
Penal Code Unnatural offences. 5 of 2003, s. 32.	162. Any person who (a) has carnal knowledge of any person against the order of nature; or (b) has carnal knowledge of an animal; or (c) permits a male person to have carnal knowledge of him or her against the order of nature, is guilty of a felony and is liable to imprisonment for fourteen years: Provided that, in the case of an offence under paragraph (a), the offender shall be liable to imprisonment for twenty-one years if - (i) the offence was committed without the consent of the person who was carnally known; or (ii) the offence was committed with that person’s consent but the consent was obtained by force or by means of threats or intimidation of some kind, or by fear of bodily harm, or by means of false representations as to the nature of the act.	162. Any person who (a) has intentional & Unlawful carnal knowledge of any person against the order of nature; or (b) Is retained as it is. ( c) Repeal A person guilty of an offense under this section is liable upon conviction to imprisonment for a term which shall not be less than ten years but which may be enhanced to imprisonment for life. (Sexual offenses act 3) Repeal this entire second part.	Intentional & Unlawful has been defined in law, to refer to coercive circumstances, false pretenses/fraudulent means and for persons & situations when one cannot appreciate the nature of the act/offense.  (refer sexual offenses act 43) Repeal (c) – so that it can encourage those on whom the act has been performed to report without fear especially for those when done in circumstances when one is unable to appreciate the nature of the act, as defined in sexual offenses act 43, such as when one is asleep, altered state of consciousness, or under the influence of drugs. Amending this way allows for the judiciary to judge on case by case basis, and instead of limiting the sentencing to 14 years, latitude is  spread from 10 years to life. The conditions contemplated under (a) constitute as rape which is already addressed substantively in Sexual offenses act 3 – while the second part (ii), is addressed in the definition of Intentional & Unlawful
Attempt to commit unnatural offences. 5 of 2003, s. 33.	163. Any person who attempts to commit any of the offences specified in section 162 is guilty of a felony and is liable to imprisonment for seven years.	Retain as it is
Indecent practices between males. 5 of 2003, s. 35.	165. Any male person who, whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him, or attempts to procure the commission of any such act by any male person with himself or with another male person, whether in public or private, is guilty of a felony and is liable to imprisonment for five years.	Repeal this and replace it instead with the Sexual Offenses Act 6 & 11.	The sexual offenses act 6 & 11A are both gender neutral, hence cover both men and women They protect children, adults and  prohibited blood/kinship affinities.  Is more comprehensive because it does not address commission, but also focuses on whether one compels, induces or causes into acts of indecency  Provides for consistency in sentencing  and is even more stringent (provides for a possibility of sentence more than 5 years)   Is more practical to implement since it does not create the public/private binary.  It also recognizes indecent acts could include animal body parts.

6. Compelled or induced indecent acts

A person who intentionally and unlawfully compels, induces or causes another person to engage in an indecent act with—

(a)        the person compelling, inducing or causing the other person to engage in the act;

(b)        a third person;

(c)        that other person himself or herself; or

(d)        an object, including any part of the body of an animal, in circumstances where that other person—

(i) would otherwise not have committed or allowed the indecent act; or

(ii) is incapable in law of appreciating the nature of an indecent act, including the circumstances referred to in section 43,

is guilty of an offence and is liable upon conviction to imprisonment for a term which shall not be less than five years.

11. Indecent act with child or adult

(1) Any person who commits an indecent act with a child is guilty of the offence of committing an indecent act with a child and is liable upon conviction to imprisonment for a term of not less than ten years.

(2) It is a defense to a charge under subsection (1) if it is proved that such child deceived the accused person into believing that such child was over the age of eighteen years at the time of the alleged commission of the offence, and the accused person reasonably believed that the child was over the age of eighteen years.

(3) The belief referred to in subsection (2) is to be determined having regard to all the circumstances, including the steps the accused person took to ascertain the age of the complainant.

(4) Where the person charged with an offence under this Act is below the age of eighteen years, the court may upon conviction, sentence the accused person in accordance with the provisions of the Borstal Institutions Act (Cap. 92) and the

Children’s Act (Cap. 141).

(5) The provisions of subsection (2) shall not apply if the accused person is related to such child within the prohibited degrees of blood or affinity.

43.        Intentional and unlawful acts

(1)           An act is intentional and unlawful if it is committed—

(a)        In any coercive circumstance;

(b)        Under false pretenses or by fraudulent means; or

(c)        In respect of a person who is incapable of appreciating the nature of an act which    causes the offence.

(2)        The coercive circumstances, referred to in subsection (1) (a) include any circumstances where there is—

(a)        use of force against the complainant or another person or against the property of the complainant or that of any other person;

(b)        threat of harm against the complainant or another person or against the property of the complainant or that of any other person; or

(c)        abuse of power or authority to the extent that the person in respect of whom an act is committed is inhibited from indicating his or her resistance to such an act, or his or her unwillingness to participate in such an act.

(3)        False pretenses or fraudulent means, referred to in subsection (1)(b), include circumstances where a person—

(a)        in respect of whom an act is being committed, is led to believe that he or she is committing such an act with a particular person who is in fact a different person;

(b)        in respect of whom an act is being committed, is led to believe that such an act is something other than that act; or

(c)        intentionally fails to disclose to the person in respect of whom an act is being committed, that he or she is infected by HIV or any other life-threatening sexually transmittable disease.

(4)        The circumstances in which a person is incapable in law of appreciating the nature of an act referred to in subsection (1) include circumstances where such a person is, at the time of the commission of such act—

(a)        Asleep;

(b)        Unconscious;

(c)        In an altered stated of consciousness;

(d)        under the influence of medicine, drug, alcohol or other substance to the extent     that the person’s consciousness or judgment is adversely affected;

(e)        Mentally impaired; or

(f)         A child.

(5)        This section shall not apply in respect of persons who are lawfully married to each other.