Parliament seeks to end out-of-court settlement for sexual offences

Parliament is moving to abolish out-of-court settlements in cases surrounding sexual offences, as part of sealing loopholes and strengthening Kenya’s legal framework for dealing with such issues, once and for all.

Garissa County MP, Amina Udgoon moved the Sexual Offenses (Amendment) Bill, which seeks to ensure offences under the Sexual Offences Act are dealt with exclusively through formal judicial processes.

She explained that sexual offences are some of the most traumatic crimes in the society, leaving deep physical, emotional and psychological harm on the victims, many of whom are women and children.

Despite existence of clear laws criminalising sexual offences, she regretted that the country continues to witness instances where such offences are subjected to informal settlements, including traditional or community dispute resolution mechanisms.

In some cases, families or communities negotiate compensation outside the judicial system, effectively denying victims justice and allowing perpetrators to escape accountability.

“This bill introduces a new Section 40A to expressly provide that offences under the Sexual Offences Act shall be prosecuted exclusively through the formal judicial system. It further declares, void any agreement or settlement purporting to dispose of sexual offences outside the court process. This proposal is firmly grounded in Article 159(3) of the Constitution, which prohibits the use of traditional dispute resolution mechanisms in matters that are repugnant to justice and morality or inconsistent with the Constitution,” she told the House.

She insisted that sexual offences are grave criminal matters affecting not only individuals but society, thus, cannot be privately negotiated away and explained that the bill does not limit any constitutional rights or freedom.

Instead, it strengthens access to justice and protects victims from coercion, stigma and pressure to accept settlement in place of lawful prosecution.

“This bill is important and timely because sexual offences are crimes against the State, not private wrongs. Sexual offences are public crimes prosecuted in the name of the Republic, not private disputes between individuals or families. Allowing out-of-court settlement undermines the criminal justice system and defeats the State's constitutional duty to protect citizens and maintain public order,” she argued.

Udgoon held that criminal liability cannot lawfully be negotiated away through private arrangements and has a constitutional basis under Article 159(3).

She explained that Article 159 (3) of the Constitution expressly limits the use of traditional dispute resolution mechanisms, where such are repugnant to justice and morality or inconsistent with the Constitution.

Similarly, she regretted that settling sexual offences through the compensation or community arrangements often silences victims and prioritises community harmony over justice, thus falling squarely within what Article 159 (3) prohibits.

“Victims, particularly women and children, are frequently pressured by families or communities to accept compensation or informal settlement to avoid stigma. Such settlements are rarely voluntary and often deny victims access to justice, protection and rehabilitation. The amendment shields victims from coercion and ensures their cases are handled within formal legal safeguards,” she submitted.

According to Udgoon, permitting informal settlements weakens deterrence because offenders avoid prosecution and punishment but a clear legal requirement that sexual offences be handled only by courts reinforces accountability and enhances public confidence in the justice system.

She said Kenya is a party to international and regional instruments like Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which protects women against gender-based violence, exploitation and sexual offences are considered a form of gender violence.

Similarly, she explained that the Maputo Protocol seeks to protect and promote the rights of women in Africa, including elimination of discrimination against women as well as African Charter on Human and People's Rights, an international human rights instrument designed to promote, protect human rights and basic freedom across Africa.

“Informal settlements undermine these obligations. It aligns with the purpose of the Sexual Offence Act. The Sexual Offence Act was enacted to combat sexual violence and protect vulnerable persons. Allowing disputes to settle outside court defeats the purpose of the Act,” she told the House.

To this end, the amendment clarifies legislative intent and prevents misuse of alternative mechanisms, noting that sexual offences have broader societal consequences, including public safety concerns and long-term trauma to the victims.

Public interest, therefore, requires prosecution irrespective of private agreements, with Udgoon saying ambiguity currently allows some cases to be informally settled.

But the amendment removes uncertainty and ensures uniform enforcement of the law across the country, but informal settlements allow offenders to remain in communities within accountability, increasing the risk of repeat offences.

“Judicial prosecution creates official records and enables proper monitoring and sentencing. This also promotes the amendment that ensures justice is not dependent on wealth or community influence. Poor or vulnerable victims should not receive compensation when wealthy offenders escape prosecution,” she uttered.

She noted the bill does not concern county governments and neither does it occasion additional public expenditure thus, not a money bill within the meaning of Article 114 of the Constitution.

“Sexual offences cannot be treated as a negotiable private transaction. I urge this House to stand with the victims, uphold the rule of the law and pass this bill. We are not fighting culture. We just want justice for the people, the victims, so that they can get their rights in the culture system,” she insisted.

Nominated MP Harun Sulekha seconded the motion, saying the Bill seeks to ensure that sexual offences are not discussed under a tree.

Although alternative justice mechanisms are an important way of resolving many other disputes, she said it should not apply on matters involving sexual offences, insisting that justice must be served through the proper judicial process.

“Justice is not for sale. I believe the National Assembly can make the dream of all the girls who are suffering. Sexual offence is a crime committed against the state. It is not just simply a family affair or an affair that can be discussed under a tree. It will protect the girl child from the stigma and the withdrawal from school. It gives the girl child the right to education and it will protect them to continue in class even after the defilement,” Sulekha said.

Kisii County MP, Doris Donya said she comes from a community where Female Genital Mutilation (FGM) is practiced and rampant yet it has no health benefits

“It is a violation. I don't understand how in 2026 we are discussing FGM when other countries are discussing Artificial Intelligence and development. How bad and retrogressive that we are talking about arbitration? You bring a girl who has been defiled, they bargain, we are going to give the family a camel or cattle so that we deny this girl or this victim justice,” Donya said.

She said FGM has no justification and there is no answer that can ever be given on why girls are circumcised, terming the practice as a way of interfering with a girl's growth.

“What is this thing with FGM? I have never understood. Why should parents even discuss about FGM? Like this December, I'm just crying, I'm just worried for our girls because I know a number of them will undergo FGM. I back this motion and support there should never be an arbitration. Let the cases end at our courts,” Donya insisted.

North Imenti MP, Rahim Dawood said the Sexual Offenses Act was first brought to this Parliament in the 10th Parliament and there have been a few amendments, but this amendment is very important in this time and age.

He said if the offense is committed and there is enough proof for it, then there should be no out of court settlement, insisting that this is not a civil matter but a criminal offense, a situation that goes to the mind of that minor.

“Many times, you hear about it not just in the North Eastern but all over the country. In my constituency, I remember a case where a girl was defiled, but because the parents were poor, there was an out-of-court settlement. It even went up to court, but then it was withdrawn. I don't know how we can amend it again, in the sense that there should be nolle prosequi by the Director of Public Prosecutions at any time,” Dawood said.

Tharaka MP, George Murugara supported the Bill, saying recasts what the position in law is, that criminal cases can hardly be compromised out of courts.

As he supported, he said he is aware of the provisions of Article 159 of the Constitution, which encourages alternative dispute resolution mechanisms in dispensing justice.

He insisted that there are cases in the country which cannot be negotiated out of court, including capital offenses, which cannot be discussed out of court because they carry heavy penalties.

“Most, if not all sexual offenses relate to women. There should be no room for any mediation or any form of out-of-court settlement because these are very serious offenses, touching on the dignity, the very core of a human being, known as a woman,” he uttered.

“There is no way men go out there, assault women sexually, and then after that go to fellow men to tell them to negotiate for us, we get off the hook and provide you with some form of retribution, restorative justice, while justice does not go to that particular victim. As far as sexual offenses are concerned, this is a special legislation that goes to women to protect their dignity,” Murugara insisted.