Source: Daily Nation
Up to about five years ago, it was a crime to insult the modesty of any woman under the Penal Code introduced in 1930, and even under the Indian Penal Code which it replaced.

The crime, punishable by a year in jail, was supplanted by the Sexual Offences Act in 2006, leaving a regrettable void.

The Act repealed section 144(3) of the Penal Code which made it a misdemeanour "to insult the modesty of any woman or girl". It was based on the morality of Victorian England but it served Kenyan women well.

Section 144(3) criminalised sexually insulting, harassing or tormenting a woman. For example, you could not call a woman a prostitute or loose or make obscene gestures and catcalls, or pester her for sex, without legal consequences.

It would have been a misdemeanour, a crime that is legally less serious than a felony such as murder and arson.

All the same, for the women victims, psychologically and emotionally, the sexual insults were, and still are, no "less serious" than a felony as they touch on their very dignity and violate their rights.

The Sexual Offences Act falls short of the provisions of section 144(3). It leaves women helpless in a patriarchal culture which holds that the body of a woman belongs to man.

The Act, modern as it is, only criminalises sexual harassment by a person "in a position of authority or holding public office", and then only if that person makes the sexual advances or requests "persistently", and if he knows, or has reasonable grounds to know, the advances or requests are unwelcome.

The Act also criminalises "indecent act", defined as "an unlawful intentional act which causes any contact between any part of the body of a person with the genital organs, breasts or buttocks of another, or exposure or display of any pornographic material to any person against his or her will."

It is punishable by imprisonment for a term not exceeding five years or a fine not exceeding Sh50,000, or both, if committed with an adult.

Though section 144(3) did not define what it means to "insult the modesty of any woman", courts punished such acts as obscene catcalls, calling a woman a harlot, exposing one's genitals to a woman, writing letters making indecent overtures and displaying pornographic material to a woman.

Today, courts can only take on such acts if they amount to a breach of public peace, or if they are said to defame the woman, as in the case of Anisia Kagwiria Mungania v Lucy Gakanyi Kirema.

Ms Mungania claimed Ms Kirema called her, in Kimeru, a prostitute (maraya) and uncircumcised (mukenye). The words, she said, were uttered in the presence of other people, including children, and her reputation was injured and, as a result, children disrespected her.

Tigania district magistrate D.J. Nyaga awarded Ms Mungania Sh10,000 in general damages. However, Ms Kirema appealed to the High Court in Meru and Justice Mary Kasango quashed the award and conviction on May 7, 2010.

Many people are now unhappy that anybody can sexually pester, harass, bait, torment, tease, taunt and bug women, without legal consequences. One of them is chief magistrate Kiarie Waweru Kiarie.

In an article, "The Sexual Offences Act: Omissions and Ambiguities", in the current issue of the Kenya Law Review Journal, he says section 144(3) played "a very central role" in checking conduct that is not covered in the definition of "indecent act" in the Sexual Offences Act.

He says he recently tried a case where a man harassed a 12-year-old by pestering her to have sex with him until she ran away from home. Since the Sexual Offences Act does not cater for such acts, he says he had no option but to acquit the man "in spite of his obnoxious conduct."

Mr Kiarie concludes, rightly, that the Sexual Offences Act should be amended to incorporate the provisions of the revoked Section 144(3) of the Penal Code.

• Kenya