Court ruling. The Constitutional Court decriminalised consensual sexual intercourse in the case of Teddy Bear Clinic for Abused Children and Another v Minister of Justice and Constitutional Development and Another 2014 (2) SA 168 (CC). The issue before the court was whether sections 15 and 16 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act of South Africa were unconstitutional for criminalising consensual sexual conduct between adolescents in the age group 12 to 16 years. The court held that imposing criminal liability on adolescent sexual conduct that is otherwise normative had the effect of harming the adolescents they intend to protect. This harm constituted a deep encroachment on the rights of the child, including, dignity and privacy, and is against the best interests of the child principle. The court found the law to be unconstitutional, and directed Parliament to decriminalise consensual sexual activity between adolescents. The law was amended and subsequently passed in 2015. Furthermore, the new law decriminalised consensual sexual activity where the older adolescent is above 16 years but below 18 years, provided the age difference between the partners is not more than 2 years. Kenya, however, holds a different view. In CKW v Attorney General & Director of Public Prosecutions, Petition No. 6 of 2013, the High Court of Kenya considered a challenge to defilement provisions of the Sexual Offences Act, Act 3 of 2006. Section 8 of the Sexual Offences Act defines defilement as an act of sexual penetration with a child (under Kenyan law, a child is defined as a person below the age of 18 years). A 16-year-old boy who was being prosecuted in the magistrate’s court for committing the offense of defilement for having consensual sex with a girl of 16 years, petitioned the High Court to declare Sections 8(1) and 11(1) of the Sexual Offences Act invalid to the extent that they are inconsistent with the rights of children as protected under the Constitution of Kenya, for criminalising consensual sexual conduct between adolescents below the age of 18 years. The High Court of Kenya decided that criminalisation of consensual sexual conduct between adolescents was in the best interests of the child, to protect children from harmful acts of sexual activity. In making its determination, it considered the decision of the South African Constitutional Court in the Teddy Bear Clinic case. In arriving at these diametrically opposed positions, both the South African and Kenyan courts claimed to be advancing the best interests of the child. These two decisions are representative of the policy approaches that the states have adopted toward adolescent consensual sexual conduct: a punitive and a non-punitive approach.6 Ultimately, the approach each country takes comes down to a policy direction which that country adopts for itself.7 Godfrey Dalitso Kangaude and Ann Skelton “(De)Criminalizing Adolescent Sex: A Rights-Based Assessment of Age of Consent Laws in Eastern and Southern Africa” (2008) https://journals.sagepub.com/doi/full/10.1177/2158244018806036. 7 See S v Masuku HH 106-15 wherein Justice Tsanga appears to confirm this where she states as follows: “To stem the dangers that arise for girls in particular from teenage sex, part of the answer would appear to lie in policy makers and society accepting the prevalence of youth sex and fashioning 21