The Constitutional Problem Nobody Wants to Argue
The Sexual Offences Act, No. 3 of 2006 ("the SOA") criminalises rape at section 3. It defines rape as intentional and unlawful penetration of a person's genital organs without consent. The section does not say anything about the marital relationship. That silence is precisely where the problem lives.
Kenyan courts and legal commentators have overwhelmingly treated that silence as importing the common law marital rape exemption inherited from Sir Matthew Hale's Historia Placitorum Coronae (1736), in which Hale wrote that a husband cannot be guilty of rape because a wife has given her irrevocable consent to intercourse by virtue of the marriage contract. That reasoning is not legal analysis. It is 17th-century theology dressed up as law.
The Constitution of Kenya 2010 changed the relevant legal landscape completely, and the marital exemption cannot survive in its new terms.
What the Constitution Actually Says
Article 27(1) guarantees every person the right to equal protection and equal benefit of the law. Article 27(3) provides that women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural, and social spheres. Article 27(4) prohibits discrimination on the basis of sex.
Article 29 guarantees every person the right to freedom and security, which includes the right not to be treated or punished in a cruel, inhuman, or degrading way. It also provides, at Article 29(c), that no person shall be subjected to any form of violence whether from public or private sources.
Article 45(3) states that parties to a marriage are entitled to equal rights at the time of marriage, during the marriage, and at the dissolution of the marriage.
A doctrine that tells a wife she has no right to refuse her husband sexual access is irreconcilable with every one of those provisions. The marriage contract, properly understood under the Marriage Act, No. 4 of 2014, confers no such irrevocable consent. Section 2 of the Marriage Act defines marriage as a voluntary union, and section 94 of the same Act is explicit that a spouse commits an offence if that spouse engages in conduct that causes or is likely to cause harm to the other spouse, including sexual harm. The Sexual Offences Act and the Marriage Act must be read together.
The R v R Precedent Has No Force Here
Some practitioners cite R v R [1991] 3 WLR 767, in which the House of Lords abolished the marital exemption in English law, to say that the same abolition occurred in Kenya by reception. But reception arguments are weak here. The better point is that the Constitution of Kenya 2010 is a transformative document with a bill of rights that has direct horizontal effect. Article 20(1) provides that the Bill of Rights applies to all law. Applying it, any rule of common law that denies a class of persons recourse against violence because of their marital status is void under Article 2(4), which states that any law, including customary law, that is inconsistent with the Constitution is void to the extent of the inconsistency.
Courts do not need to import an English case to fix this problem. They need only apply the Constitution.
Why the Silence in Section 3 Should Be Read as Inclusive
When Parliament enacted the SOA, the Constitution in force was the old Constitution, which was substantively weaker on equality rights. The 2010 Constitution replaced it. Under Article 2(3), the Constitution is the supreme law of the Republic and binds all persons. Courts interpreting statutes must read them compatibly with the Constitution under Article 259(1), which requires the Constitution to be interpreted in a manner that permits the development of the law, promotes its purposes, values, and principles, and advances the rule of law.
Reading section 3 of the SOA as preserving the marital exemption is constitutionally impermissible because it introduces into the statute a discrimination that the statute itself does not express and that the Constitution prohibits. The correct reading is that section 3 applies to all persons, regardless of their relationship to the victim.
What Kenyan Courts Have Failed to Do
No Kenyan court has squarely held the marital exemption void. The High Court in Petition No. 8 of 2014, Federation of Women Lawyers (FIDA) v Attorney General and 2 Others touched on women's rights under the SOA but did not address marital rape directly. That lacuna is not a sign that the law permits the exemption. It is a sign that the question has not been properly argued and properly adjudicated.
The next time a prosecution for marital rape is challenged on the grounds that the SOA does not cover it, the appropriate response from the court is to apply the Constitution and hold the old common law rule void. Any other result makes Article 45 and Article 29 meaningless for a large class of married women, and that is not a tolerable outcome.