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Reproductive Health in Sub-Saharan Africa-Original Research
Introduction
The Committee on the Rights of the Child (CRC), in its
General Comment 20 on the implementation of the rights
of the child during adolescence (CRC General Comment
20),1 enjoined states parties to balance protection and
evolving capacities when defining an acceptable minimum
legal age for sexual consent. The CRC clearly stated that
“States should avoid criminalizing adolescents of similar
ages for factually consensual and nonexploitative sexual
activity” (para 40). Many African states retain punitive
laws in their statute books inherited from colonialism.
Even modern sexual offences laws that presumably ought
to be informed by human rights norms continue to crimi-
nalize adolescents for engaging in consensual sexual activ-
ity. This article considers age of consent laws and their
interpretation by the courts in Eastern and Southern Africa,
from a rights-based perspective. It starts from the premise,
also articulated by the CRC in General Comment 20, that
“adolescence is a unique defining stage of human develop-
ment characterized by rapid brain development and physi-
cal growth, enhanced cognitive ability, the onset of puberty
and sexual awareness and newly emerging abilities,
strengths and skills” (para 10).
The issue of criminalization of adolescent consensual
sexual conduct in age of consent laws has arisen in several
courts in Eastern and Southern Africa, and the opinions have
been divided. Two court decisions set the stage for a discus-
sion on the development of age of consent laws and how they
measure up to the rights of the child. In Teddy Bear Clinic v.
Minister of Justice and Constitutional Development,2 the
issue before the Constitutional Court of South Africa was
whether Sections 15 and 16 of the Criminal Law (Sexual
Offences and Related Matters) Amendment Act of South
Africa were unconstitutional for criminalizing 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 has
the effect of harming the adolescents they intend to protect,
in a manner that constitutes a deep encroachment into the
rights of the child, including, dignity and privacy, and is
806036SGOXXX10.1177/2158244018806036SAGE OpenKangaude and Skelton
research-article20182018
1University of Pretoria, South Africa
Corresponding Author:
Godfrey Dalitso Kangaude, Department of Private Law, University of Pretoria,
Lynnwood Road, Private Bag X20, Hatfield, Pretoria 0028, South Africa.
Email: kangaude2013@lawnet.ucla.edu
(De)Criminalizing Adolescent Sex:
A Rights-Based Assessment of Age of
Consent Laws in Eastern and Southern
Africa
Godfrey Dalitso Kangaude1 and Ann Skelton1
Abstract
Age of consent criminal laws imposed on African states during colonialism were inherently patriarchal and gender-stereotypic,
and continue to influence country approaches toward adolescent consensual sexual conduct. There are two major policy
positions: a punitive and a nonpunitive approach. Most countries adopt the punitive approach. Mostly, legislation does not
explicitly criminalize consensual sexual conduct between adolescents, and this leaves a gray area to be filled in by social and
cultural norms that perceive adolescent sexual conduct negatively. Punitive approaches have been justified as necessary to
curb harms to adolescents resulting from sexual conduct, including teenage pregnancies and sexual abuse. Age of consent
laws, especially in their original colonial formulation deny adolescents, especially girls, sexual autonomy and agency. States
focus more on punishment than on taking measures to address the structural antecedents of harms associated with sexual
intercourse. States should reform age of consent laws to decriminalize consensual sex between adolescents in accordance
with recognized rights of the child.
Keywords
age of consent, adolescent sexuality, sexual agency, colonialism, Committee on the Rights of the Child
2 SAGE Open
against the best interests of the child principle. The Court
found the law to be unconstitutional, and directed Parliament
to decriminalize consensual sexual activity between adoles-
cents. The law was amended and subsequently passed in
2015.3
In CKW v. Attorney General & Director of Public
Prosecutions,4 the High Court of Kenya considered a chal-
lenge to defilement provisions of the Sexual Offences Act,
2006.5 Section 8 of the Sexual Offences Act defines defile-
ment as an act of sexual penetration with a child (defined as
a person below the age of 18 years under Kenyan law). A
16-year-old boy who was being prosecuted in the magis-
trate’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 criminalizing consensual sexual
conduct between adolescents below the age of 18 years.
The High Court of Kenya decided that criminalization 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 con-
sidered 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 represen-
tative of the policy approaches that African states have adopted
toward adolescent consensual sexual conduct: a punitive and a
nonpunitive approach. These approaches are not necessarily
always explicitly stated in policy documents but are evident in
legal arguments and court judgments that seek to defend or
reject laws that criminalize adolescent sexual conduct.
The two policy positions have a dissimilar impact on the
sexual well-being of adolescents, and this raises the question
of which approach is in the best interests of the child. The
Kenya–South Africa impasse on the question could begin to
be broken with the help of the opinion of a third court in the
region. In State v. B Masuku,6 the High Court of Zimbabwe
reviewed the case of a boy of 17 years, who had consensual
sexual intercourse with his girlfriend of 15 years, and was
consequently convicted of the offense of having sexual inter-
course with a young person. In her decision, Justice Amy
Tsanga commented on the question of criminalization of
adolescent consensual sexual conduct. She was cognizant of
the intention of criminal law to protect adolescents from sex-
ual predation, discourage early sexual debut between adoles-
cents, and to protect them from the risks and harms of sexual
intercourse including sexually transmitted infections (STIs)
and teenage pregnancies. However, she observed that an
unintended consequence of the criminal law was the punish-
ment of young people in romantic relationships, because the
law did not distinguish between the predatory adult and the
lover-boy or girl. In her judgment, she noted as follows:
Ignoring the reality of consensual sex among teenagers and
adopting an overly formalistic approach to the crime can result
not only in an unnecessarily punitive sentence, but also a
criminal record and stigmatisation as a sex offender.
She further noted as follows:
Sex among peers is a reality of adolescent sexuality. It does not
justify a suspended imprisonment term for the teen male
offender who has had sex as part of a romantic relationship with
a peer.
Justice Tsanga expressed the view that criminalizing minors
for having consensual sexual conduct was probably not the
best way to achieve the intention of protecting adolescents,
especially girls, from harms of sexual conduct. In her
words,
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
appropriate interventions. Availing contraceptive protection is
one such intervention. A more rigorous and open approach to
what is actually taught as sexual education in schools is another.
The aim of this article is to interrogate criminalization of
adolescent consensual sexual conduct, and its implications
on the sexual agency of adolescents, especially girls. It
argues—in line with the reasoning of the South African
Constitutional Court and the High Court of Zimbabwe—that
punishing adolescents who engage in consensual sexual
activity cannot be justified as necessary to protect adoles-
cents from harms and risks of sexual activity. A punitive
approach impacts negatively on the rights of adolescents.
This article also draws on some of the findings of a study
commissioned by the United Nations Population Fund
(UNFPA) and carried out by the Center for Child Law of the
University of Pretoria, to assess laws policies and related
frameworks in 23 countries in East and Southern Africa (ESA)
that have an impact on adolescent sexual and reproductive
health and rights (UNFPA, 2017). Among other aspects, the
study examined age of consent laws. “Age of consent” as used
in this article is not a legal term but a convenient expression
for describing the minimum age below which certain sexual
acts are prohibited, usually by criminal law (Waites, 1999).
The study found that most of the countries do not expressly
stipulate the age of consent. A few countries state explicitly
whether consensual sexual conduct between adolescents is
criminalized. Lack of transparency about age of consent cre-
ates uncertainty regarding what behavior is proscribed.
Another challenge arising from the lack of transparency is
that negative sociocultural norms about adolescent sexuality
fill in the lacunae, so that policies on sexual health are inter-
preted restrictively for adolescents, for example, adolescents’
access to contraceptives (Savage-Oyekunle & Nienaber,
2017).
Kangaude and Skelton 3
Most of the ESA countries whose policies were assessed
in the UNFPA study have enacted constitutions that recog-
nize the rights of the child and have ratified the United
Nations Convention on the Rights of the Child (UNCRC),
and the African Charter on the Rights and Welfare of the
Child (ACRWC). They are cognizant of their obligations to
respect, promote, and fulfill the rights of the child. States
have the obligation to ensure that age of consent laws do not
violate the rights of adolescents for being sexually active.
A Child-Centered Perspective
This article employs a child-centered perspective that recog-
nizes and addresses adult bias in creating knowledge about
children, as the guiding theoretical framework for the discus-
sion of age of consent laws and criminalization of adolescent
consensual sexual conduct. Barrie Thorne (1987) observed
that though in the feminist tradition, theorists had engaged in
complex critiques to unmask patterns of domination that pro-
duced biased knowledge against women, feminist theorizing
remained uncritically adult-centric and continued to position
children as nonautonomous and non-agentic. Knowledge
about children in various fields tended to reflect, not the
interests of children themselves, but the interests and per-
spectives of adults about children (Thorne, 2009). Prout and
James (1997) made a similar observation that in the history
of social science research, children (and women) had been
“muted” groups. They observed that children did not have a
say in issues that affected them. Even the process of law-
making about children, including the making of the UNCRC,
has not been spared the criticism that its creation reflected
the voice of adults and not of children (Gadda, 2008). Adults’
conceptualization of children has often disregarded the sex-
ual agency of children despite the reality that children, from
a young age, actively engage in gendered relations of power,
express sexual desire, and invest in sexual activities includ-
ing for sexual pleasure (Bhana, 2017; Talavera, 2007).
Although the call for a more critical theorization of child-
hood has refreshed scholarship with child-centered research
and knowledge about childhood gender and sexuality, con-
temporary state laws and practice are still dominated by
adult-centric discourses of childhood as innocence, that sus-
tain a cultural imaginary of children as nongendered and
asexual (Nyanzi, 2011). Such discourses inflect adult/child
power relations that disempower children by relegating them
to an asexual world, and justify the penalization of children
for engaging in sexual conduct that is supposedly reserved
for adults. Knowledge generated from the field of interdisci-
plinary childhood studies has exposed these discourses, and
revealed that from an early age, children actively draw on
gendered and sexual meanings in their social relationships to
construct their social worlds (Bhana, 2016; Kane, 2012;
Robinson, 2013; Thorne & Luria, 1986). It is from this
knowledge that this article draws its arguments against laws
and practices that criminally punish adolescents for engaging
in consensual sexual activity with their peers.
Concepts of Childhood and
Adolescence
Phillipe Ariès (1962) is credited as the first theorist to raise
questions, in his work Centuries of Childhood, that sug-
gested that the concept of childhood carries multiple and
varying meanings dependent on the historical and cultural
context. During colonialism, Western notions of childhood
were exported to African colonies through laws including
age of consent laws. These notions of childhood took shape
in the period of modernity in Europe (Forth, 2007), charac-
terized by modernizing forces that came to dominate mate-
rial life in 19th century, including the development of global
capitalist economic system, technological advancement and
industrialization, and the rise of the modern nation-states
(Smith, 2014). The period of modernity saw the proliferation
of scientific theories including evolutionary developmental
theories explaining human development such as biology and
psychology. One well-known and influential developmental
psychologist was Jean Piaget. “Within Piagetian develop-
mentalist theory, children are perceived to proceed through a
biologically predetermined set of linear cognitive develop-
ments, which correlate with chronological age, to reach the
ultimate goal of adulthood” (Robinson, 2008, p. 115).
Children are understood to be incomplete persons and in the
process of becoming adults: the ideal end of the human
development process (Archard, 2015). Archard contrasts the
Western understanding of adulthood as a finalized state of
“being” and distinguished from childhood as a state of
“becoming,” with the Eastern understanding of adulthood as
a continual process of becoming that does not terminate at
some designated stage. In the Eastern world-view, “child-
hood is construed not so much as an actual period of one’s
life, but more as a metaphorical immaturity which can be
present to some extent throughout a lifetime” (p. 48). In
Western culture, childhood is conceptualized as an inferior
state that is left behind once adulthood is attained.
In Act your age! A cultural construction of adolescence,
Nancy Lesko (2012) describes conventional discourses of
adolescence that originated in Europe’s modernity.
Adolescence is assumed to be a natural phenomenon reduc-
tively explained by the physiology of hormones and their
psychological effects. Adolescence is defined in opposition
to adulthood as a period described by Stanley Granville Hall
as “storm and stress,” and characterized as emotional, unpre-
dictable, and unstable. Western discourses of adolescence are
infused with modernist and evolutionist assumptions of
human development as a linear progress from non-rationality
to rationality, inferiority to superiority, primitive to civilized,
asexual to sexual, feminine-like to masculine, and from child
to adult. Adolescence is therefore conceptualized as a state of
4 SAGE Open
becoming, a stage toward adulthood, which is the stable state
of being. It is this conceptualization of adolescents as asex-
ual, irrational, and unstable that has been influential in shap-
ing responses to challenges perceived to be a result of their
engaging in sexual conduct such as teenage pregnancies and
HIV/AIDS (Macleod, 2009).
Regulation of Sex Between
Adolescents: A Cultural and Historical
Perspective
Traditional Africa
Inquiry into historical and contemporary social practices
elicits expected variations but also similarities about how
cultures conceptualize childhood sexuality in Africa.
Although this article relies on examples of specific cultural
practices for a general discussion on childhood sexuality
practices in Africa, it does not in any way construe cultural
homogeneity in the region.
Among the Ovaherero and Ovahimba cultural groups in
Namibia, pre-pubescent children play sexual games that
might include sexual penetration and sexual pleasure.
However, young children are nevertheless constructed as
asexual (Talavera, 2007). Similarly among the Luo, young
children are observed to show curiosity about sex and sexu-
ality and to engage in games that are sexual in nature
(Nyakwaka, 2005). As boys and girls grow toward adoles-
cence, Luo parents start to intervene by restricting girls from
playing with boys and vice versa.
In most African countries, puberty signifies that the child
is now potentially an adult. A child is deemed to have become
an adult in Africa when she or he has attained the physical
capacity to take on adult roles (Ncube, 1998). This is a gen-
dered process. At menarche, girls are recognized as having
attained the capacity to take on the role of child-bearing, a
role reserved for adults. On the other hand, for boys, semen-
arche is not as significant because further to having attained
reproductive maturity, the boy is expected to demonstrate
that he can take on the role of raising a family. Passage rites
as observed in some cultures, which include the formal pro-
cess of indoctrination of sexual and cultural values, complete
the transition to adulthood. The concept of adolescence as an
interim period between childhood and adulthood demarcated
by age was therefore nonexistent in the worldview of African
cultures, until the globalization of Western notions of child-
hood. In traditional Africa, the end of childhood was marked
by puberty accompanied by rites of passage rather than
attainment of a specified age (Mwangi, 2005).
Most African cultures regulated and still regulate sexual
conduct between and with adolescents. With some excep-
tions, sexual intercourse was an activity reserved for adults
in stable unions. In some cultures, circumscribed forms of
sexual activity were acceptable between unmarried girls and
boys. Among the Kikuyu of Kenya, girls and boys could
engage in non-penetrative sexual activity called ngwiko or
ngweko,7 but this was only for initiated boys and girls. Full
sexual intercourse was discouraged (Khamasi, 2005; Kiragu,
2013). A similar practice called ukumetsha existed among
the Xhosa in Southern Africa (Erlank, 2001). Among the Luo
of Kenya, limited sexual activity was permitted among initi-
ated young people (Nyakwaka, 2005). Among the Maasai,
circumcised boys had the freedom to have sexual intercourse
with uncircumcised girls or young married girls as long as
they were from within their age group and not from their
mother’s or father’s peers (Karei, 2005).
Norms regulating young people’s sexual conduct were
gendered. Unmarried girls were not supposed to become
pregnant before marriage because virginity was highly val-
ued. Among the Xhosa and Kikuyu, even if sexual activity
between young people was allowed, pregnancy was avoided
by discouraging penetrative vaginal sexual activity. In most
cultures, the burden to maintain virginity and avoid preg-
nancy fell upon the girls who were supposed to exercise
restraint. Those who failed to control themselves, or indeed,
control their sexual partners, and became pregnant before
marriage, were shamed and chastised (Yebei, 2005). On the
other hand, boys were relatively free to engage in sexual
intercourse with girls. Nevertheless, boys in some cultural
settings still had to be careful because being responsible for
pre-marital pregnancy could mean paying damages to the
family of the girl (Preston-Whyte, Zondi, Mavundla, &
Gumede, 1990). Sometimes, the boy responsible for the
pregnancy would be asked or required to marry the girl.
Colonial Age of Consent Laws in Africa
European colonization of Africa involved the violent subdu-
ing of peoples and the imposition of foreign cultural forms
including laws such as sex laws that altered how colonized
peoples understood themselves as sexual (Coetzee & du Toit,
2018). Africa received penal and criminal codes containing
age of consent provisions that in some cases have survived to
contemporary times (Kerr, 1958; Morris, 1974). Colonial
age of consent laws were in their conceptualization inher-
ently patriarchal and class-based in their countries of origin,
and inflected gender-stereotypical views about sexuality
(Mead & Bodkin, 1885; Waites, 2005). The interest of colo-
nial governments in introducing age of consent laws was not
to protect African adolescents from sexual harm, but to
advance imperial interests of colonial governments. This is
why, for example, the consent of women and girls never fea-
tured in official documents discussing the age of consent law
or in the law itself (Bannerji, 2001). Girls were constructed
as nonautonomous and sexually passive, and age of consent
laws were enacted to restrain male sexual desire that was
constructed as aggressive and dangerous. The law therefore
deferred control of sexual access to girls to the legal guard-
ian, usually an adult male, who would determine the right of
sexual access to his female ward. The consent of the girl did
Kangaude and Skelton 5
not matter because the power to grant sexual access resided
in the male legal guardian (Bannerji, 2001).
The introduction of colonial laws and the influence of
Abrahamic religions created a pluralistic normative environ-
ment in which multiple regulatory frameworks consisting of
formal Western-derived laws, African traditional norms and
Abrahamic religious norms compete and coexist (Tamale,
2014). Among the regulatory frameworks, formal laws that
criminalize adolescent consensual sexual conduct potentially
have the most drastic consequences for adolescents.
Although the cultural systems of the colonizer and the
colonized differed in respect of how they addressed adoles-
cent sexuality, there were also some similarities. First, they
were both patriarchal in nature and involved largely men as
the regulators of the sexual conduct of adolescents, espe-
cially girls. Both cultures also valued female chastity and
virginity, so that the girl was under stricter surveillance and
control than the boy. A girl who was found to have had sex
before marriage was considered as less pure and less desir-
able for a good marriage. In both cultural systems, the
responsibility was on the girl to remain chaste rather than on
the boy.
The cultural systems differed in the way they constructed
and regulated adolescent sexuality. Colonial age of consent
laws prohibited sexual conduct based on age, and the prohibi-
tion was couched in absolutist terms. African cultural systems
restricted sexual conduct among post-pubescents, but in some
contexts, young people were relatively free to engage in sex-
ual activity with each other. Furthermore, in the African sys-
tem, young people would undergo comprehensive sexuality
education and counsel as part of initiation rites. A crucial dif-
ference, however, and the central concern of this article, is
that colonial age of consent laws criminalized consensual
sexual conduct between adolescents. As Justice Amy Tsanga
lamented in the B Masuku case, this punishes adolescents
involved in romantic relationships. Furthermore, it ignores
the sexual agency and autonomy of adolescents, and most
especially girls, and contributes to their social
disempowerment.
Age of Consent Laws in Postcolonial Africa
Upon attaining independence, most postcolonial states
adopted the legislation received under colonialism. Some
countries maintain the colonial versions of age of consent
laws. Others have modified the colonial versions, whereas
yet others have undertaken more substantive reforms,
repealed the colonial versions and replaced them with new
laws. Table 1 shows how age of consent laws regulate ado-
lescent sexual conduct in selected ESA countries.
The reforms in age of consent laws on the African con-
tinent have been motivated by a variety of reasons includ-
ing the unsuitability and inadequacy of colonial laws in
regulating sexual conduct, and the growing consensus that
laws ought to be aligned with human rights norms. This
has resulted in a remarkable variation of age of consent
laws in Africa. As described at the beginning of this arti-
cle, underlying the permutations of age of consent laws
are two fundamental policy orientations regarding adoles-
cent consensual sexual conduct: punitive or nonpunitive.
The important question is whether these laws are aligned
with the rights of adolescents.
Most laws do not expressly criminalize consensual sexual
conduct between adolescents. Rather, they prohibit, in some
cases without exception, sexual conduct with persons below
a specified age. In most countries, of which Comoros, Kenya,
and Swaziland are examples, the age of consent is deter-
mined as a single cut-off age, below which a person is con-
sidered incapable of consent to sexual activity, and above
which the person is capable of consent. A few countries have
differentiated ages of consent based on gender, such as
Angola and the Democratic Republic of Congo. Other coun-
tries such as South Africa have a two-tier age of consent
framework that will be a subject of further discussion below.
The ages of consent vary from the lowest, 13 years, in
Comoros, to the highest, 18 years, which includes Kenya,
Uganda, Swaziland, and Tanzania. In most any countries age
of consent is between 18 and 13, including 14 years in
Namibia, and 16 years for countries such as Zambia,
Zimbabwe, Malawi, and South Africa.
In some countries, the age of consent is gender specific.
Zambia and Malawi, for example, criminalize defilement,
defined as sexual intercourse with a girl below the age of
consent. In Zambia and Malawi, defilement provisions do
not therefore apply to boys below the age of consent. Other
countries have reviewed or reformed their laws and adopted
gender-neutral provisions such as Uganda and Kenya. On the
other hand, Angola has different ages of consent, for girls it
is 16 years, and for boys, 18 years.
In countries that have retained the colonial language
describing sexual intercourse as “carnal knowledge” such
as Mauritius and Zambia, age of consent provisions specifi-
cally apply to heterosexual penile-vaginal intercourse.
Other countries have reformed age of consent laws to
include other conduct. Malawi, for example, in 2011, intro-
duced new provisions that prohibit sexual activity with per-
sons below 16 years which includes a broad range of sexual
conduct. Proscription of a broad range of sexual conduct
and activity appears to be the trend of new punitive sex
laws.
Criminalization of Adolescents for Engaging in
Consensual Sexual Conduct
The laws of most countries do not explicitly state whether
adolescents would be prosecuted or not for engaging in con-
sensual sexual conduct. A few countries including Uganda,
Kenya, Namibia, and South Africa stipulate expressly the
criminalization or non-criminalization of consensual sexual
conduct between adolescents of a specified age.
6 SAGE Open
The country that is most clear about non-criminalization
of sexual conduct between adolescents is the South Africa.
Following the outcome of the Teddy Bear Clinic case,
South Africa amended its sexual offences law and decrimi-
nalized sexual activity between adolescents who are both
between 12 and 16 years. Furthermore, the law decriminal-
ized consensual sexual activity where the older adolescent
is above 16 years but below 18 years, provided the age dif-
ference between the partners is not more than 2 years. Apart
from South Africa, Namibia also does not prosecute adoles-
cents in circumstances where the younger adolescent is
below the age of 14 years and the older adolescent is no
more than 3 years older, as stated in the Combating of Rape
Act.8
Table 1. Table Showing How Age of Consent Laws Regulate Sexual Intercourse or Conduct Between Adolescents in Selected ESA
Countries (as of October 2017).
Country Age of consent to sexual intercourse or conduct
Criminalization or non-criminalization of consensual
sexual intercourse or conduct between adolescents
Angola Sexual intercourse of a person more than 18 years who
takes advantage of the inexperience of a child below 16
years is criminalized. Age of consent is 16 years.
An adolescent below 18 years may not be prosecuted for
consensual sex with a partner below 16 years.
Botswana Unlawful carnal knowledge of a person below 16 years.
Age of consent is 16 years.
An adolescent below 18 years may be prosecuted for
consensual sex with a partner below 16 years.
Burundi Sexual intercourse with a person below 18 years is
prohibited. Age of consent is 18 years.
Adolescents below 18 years may be prosecuted for
consensual sex.
Comoros Sexual intercourse with a person below 13 years is
criminalized.
An adolescent below 18 years may be prosecuted for
consensual sex with a person below 13 years.
Democratic
Republic of
Congo
Age of consent is 14 years for girls and 18 years for boys. An adolescent below 18 years may be prosecuted for
consensual sex with a girl below 14 years, and in case of
same sex intercourse, consensual sex with a boy below
18 years.
Ethiopia Age of consent is 18 years. Adolescents below 18 years may be prosecuted for
consensual sex.
Kenya Sexual intercourse with a person below 18 years is
defilement. Age of consent is 18 years.
Adolescents below 18 years may be prosecuted for
consensual sex. Confirmed in CKW.
Madagascar Indecent assault of a girl below 14 years is criminalized,
thus it appears that the age of consent is 14 years.
An adolescent may be prosecuted for consensual sexual
conduct with a girl below 14 years.
Malawi Sexual intercourse with a girl below 16 years is prohibited.
Sexual activity with a child below 16 years is also
prohibited. The age of consent is 16 years.
An adolescent may be prosecuted for consensual sex with
a girl below 16 years. Adolescents below 16 years may
be prosecuted for consensual sexual activity.
Mozambique Sexual intercourse with a person below the age of 16
years is criminalized. The age of consent is therefore 16
years.
Adolescents below 16 years may be prosecuted for
consensual sex.
Namibia Sex with a person below the age of 14 years is
criminalized. Age of consent is 14 years.
Consensual sex with a person below 14 years is not
criminalized if the older party is not more than 3 years
older.
Rwanda Sexual relations with a person below the age of 18 years
are criminalized.
Persons below the age of 18 years may be prosecuted for
consensual sexual relations.
South Africa Sexual relations with a person below the age of 16 years
are criminalized. The age of consent is 16 years.
Consensual sex between adolescents within 12 to 16
years of age range is not criminalized. Where the older
party is between 16 and 18 years, consensual sex is
not criminalized if the older partner is not more than 2
years older.
Swaziland Carnal knowledge of a girl below 16 years is criminalized.
The age of consent is 16 years.
An adolescent below 18 years may be prosecuted for
having sexual conduct with a girl below 16 years.
Uganda Age of consent is 18 years. Adolescents below 18 years will be prosecuted for
consensual sex.
Zambia Defilement of girls below the age of 16 years is
criminalized. The age of consent is 16 years for girls.
An adolescent may be prosecuted for consensual sex with
a girl below 16 years.
Zimbabwe Sexual acts with a young person defined as below the age
of 16 years are criminalized. Age of consent is therefore
16 years.
An adolescent below 18 years will be prosecuted, but it is
a defense if the adolescent is also below the age of 16
years.
Note. ESA = East and Southern Africa.
Kangaude and Skelton 7
Kenya criminalizes sexual conduct between adolescents
below the age of 18 years, as was confirmed in CKW. Uganda
explicitly criminalizes sex between adolescents, as stipulated
by the Penal Code (Amendment) Act, 2007, amending
Section 129 of the Penal Code on defilement.9 It states that
child-to-child sex would be dealt with in accordance with
relevant sections of the Children Act (Uganda) including
being placed under supervision if the child involved is below
12 years, and if above 12 years (and below 18 years), the
child would be treated in accordance with the provisions for
criminal prosecution of child offenders.
In countries where the law is not transparent, the gray area
has sometimes been clarified by court interpretation, or
policy practice. In Zimbabwe, the case of The State v. CF (A
Juvenile)10 clarified that there is no offense where a young
male engages a young female in any act of consensual sexual
conduct. However, Justice Kudya lamented that despite this
being the position in law, there was a stream of cases involv-
ing young people being prosecuted and convicted for engag-
ing in consensual sex, coming for review before the high
court. This is one of the challenges of lack of transparency
because some law enforcers, ignorant of court interpretation,
or knowingly taking advantage of the ambiguity, prosecute
adolescents for engaging in consensual sex.
The Gendered Nature of Age of Consent Laws
In most countries where adolescents are criminalized for
having sex with peers, it is the boy who tends to be prose-
cuted and punished, rather than the girl. In fact, all the cases
from Kenya and Zimbabwe cited in this article involved the
prosecution of boys. The reason is partly historical and
partly cultural. Colonial age of consent laws were designed
to preserve the purity of the unmarried girl and were based
on the conceptualization of girls as sexually passive and
non-agentic in the sexual act (Waites, 1999). Boys and men,
therefore, bore the brunt of criminal prosecution. The sec-
ond rationale is that the girl child was considered as the
property of the father and could only be given away at mar-
riage to a man who he permits to sexually access his daugh-
ter (Waites, 2005). A person who sexually accessed the girl
without permission of the father polluted her and committed
an act of defilement. Girls were sometimes subjected to vir-
ginity testing to prove that they were undefiled property.
Historically, age of consent criminal law served to preserve
female chastity by keeping boys and men away from girls.
The cultural reason was less to do with the sexual pas-
sivity of the girl, but rather was similar to the second ratio-
nale of colonial criminal law, which is that the male
guardian “owned” the girl until she was given away in mar-
riage to a person deemed acceptable, who would then be
responsible over the girl. A girl who was found to have lost
her virginity before she was married caused shame to her
parents and herself, and in most cases was humiliated
(Lumallas, 2005). It was especially shameful to parents if
their daughter got pregnant before marriage, and in some
cases, they would demand compensation from the boy
responsible for the pregnancy. Parikh’s (2012) ethnographic
study of the effect of the law of defilement in Uganda
revealed that fathers co-opt age of consent criminal laws to
selectively prosecute boys whose character they do not
desire. One of the motivations for the father to press charges
of defilement is when the boy does not have financial
means to take care of his daughter. It is not coincidental,
therefore, that both Masuku and CF (A Juvenile) involved
boys who had impregnated their girlfriends. The pregnancy
and the economic status of the boy would have been, most
likely, the motivating factors for pressing charges. Parikh’s
findings are corroborated by the UNFPA study. In focus
group discussions with young people in Uganda, partici-
pants raised the point that when a girl became pregnant,
parents demanded money from the boy, failing which, they
would threaten or press charges (UNFPA, 2017). The patri-
archal nature of the colonial law and its resonance with cul-
tural practices that were also patriarchal in nature might
explain why some countries still retain the colonial law,
despite that it was initially introduced as one of the tools of
domination and oppression of Africans.
Interestingly, even countries that have abandoned colo-
nial legislation and have transformed their law to be aligned
with human rights norms, such as Kenya, the formulation
of the new law or its application reflects gender stereotypi-
cal views about sexuality. Boys continue to be regarded as
sexually agentic and the initiators of sex, whereas girls are
treated as sexually passive and accorded the victim status,
as was implicit in CKW (see also Muhanguzi, 2011). Age of
consent laws are therefore markedly gendered in their for-
mulation or application. The sexuality of girls is more
strictly policed because girls are regarded as vulnerable and
easily succumb or perish to the sexual desires of boys and
men. Unwittingly, this is the very reason age of consent
laws disempower girls because they predetermine girls as
potential and perpetual victims of male sexual desire, and
thereby sustaining discourses that undermine the agency of
girls (Allen, 2007).
A Rights-Based Approach to Regulating
Sexual Conduct Between Adolescents
Human rights norms recognized in various treaties invite
new ways of thinking about adolescents and sexuality. Laws
and policies regulating adolescent sexual conduct should
conform to child rights principles articulated in the UNCRC
and ACRWC, as interpreted and explained by the treaty
monitoring bodies (Kangaude & Banda, 2014).
Human rights norms have also been reiterated in global
consensus documents such as the International Conference on
Population and Development’s (ICPD) Program of Action of
1994.11 The ICPD Program of Action affirms that “Responsible
sexual behaviour, sensitivity and equity in gender relations,
8 SAGE Open
particularly when instilled during the formative years,
enhance and promote respectful and harmonious partnerships
between men and women” (para 7.34). It is important there-
fore for governments to encourage gender equitable behavior
and promote harmonious relationships among the heteroge-
nous group of adolescents from an early age. This would be
possible only if governments would appreciate that adoles-
cents are sexual and capable of engaging in sexual conduct in
a manner that is respectful of each other, and not use penal
law as the primary means of shaping sexual relationships
between adolescents. This article therefore draws on the inter-
pretation and application of the rights of the child by the CRC
and other treaty monitoring bodies, to suggest how govern-
ments could create age of consent laws that would protect
adolescents from harm but at the same time respect their sex-
ual agency and autonomy.
The principle of the development of the child requires that
the increasing sexual awareness of the child and the evolving
capacity of the child to engage in sexual activity should
receive positive affirmation rather than a negative apprecia-
tion. This entails that adolescents receive the necessary sup-
port, and from early in their lives, to develop equitable
attitudes to gender and sexual identities. Indeed, it has been
shown that gender attitudes among adolescents are set at a
very early age (Blum, Mmari, & Moreau, 2017). Sexuality is
integral to the development of the child and important not
only for the post-pubescent adolescents but pre-pubescents.
The state has the obligation to provide support for the sexual-
ity development of the child including through institutions
such as schools and health facilities.
It is important therefore that “States, together with non-
State actors, through dialogue and engagement with adoles-
cents themselves, should promote environments that
acknowledge the intrinsic value of adolescence and intro-
duce measures to help them thrive, explore their emerging
identities, beliefs, sexualities . . .” (CRC General Comment
20, para 16). Respect for others and a positive appreciation
for difference can only be taken up by adolescents if adults
communicate meanings of gender and sexuality that address
sexism, homophobia, and misogyny.
It is also important as adolescents develop an autonomous
sense of self that they accept and appreciate themselves as
sexual beings with sexual desire because failure to positively
accept one’s sexuality and sexual desire contributes to dis-
empowerment (Tolman, 1994). Sexual desire should not be
isolated as special and targeted for control but integrated as
part of normal development in adolescence. In this regard,
institutions such as schools and health facilities should pro-
vide affirmative support through sexuality education and
provision of information and services on sexuality to adoles-
cents. Socializing agents, for example, teachers in educa-
tional institutions including pre-school, need support to
competently address issues of gender and sexuality with
children (Robinson, 2013). In the Teddy Bear Clinic case,
Justice Sisi Kampepe emphasized that the challenge with
criminalizing normative adolescent sexual conduct is that it
drives adolescent sexual behavior underground and this
makes it very difficult for adults to provide affirmative sup-
port and guidance on matters of sexuality to the
adolescents.
Protection and Self-Protection From Harms of
Sexual Activity
As adolescents develop the capacity for sexual desire, they
should be protected from predatory adults who might take
advantage of their vulnerability. However, it is crucial that
the sexual desire of adolescents be recognized and validated
as part of normative development. This point was also made
in the Teddy Bear Clinic case, that sexual desire in adoles-
cents, and sexual experimentation, is a normal part of their
development. In contrast, the case of Martin Charo v. the
State12 is illustrative of how adults have discredited sexual
desire and experience of adolescents. The case was an appeal
by an adult male of older than 20 years, who was involved in
a sexual relationship with a girl of 14 years, and had been
convicted of defilement in a lower court. However, the High
Court quashed the conviction on the basis that the girl inten-
tionally went to the man’s house and voluntarily engaged in
sex with him. In the Court’s reasoning, a girl who expresses
sexual desire, and willingly participates in sexual intercourse
should be treated like a grown woman, so that defilement law
could not be applied to protect her from harmful sexual con-
duct. The Court could not conceptualize the adolescent as
both sexually agentic but also as in need of protection from
potentially sexually exploitative relationships.
There are several consensus documents developed on the
African continent that have expressed the commitment of
African states to address adolescent sexual health, and that
recognize that adolescents do engage in voluntary sexual con-
duct. The 2013 Ministerial Commitment on Comprehensive
Sexuality Education and Sexual and Reproductive Health
Services for Adolescents and Young People in Eastern and
Southern Africa (hereinafter “Ministerial Commitment”) is
cited here to highlight the aspect of adolescent sexuality. The
Ministerial Commitment acknowledges that “Young people
should be supported to delay sexual debut until they choose to
be sexually active and ensure that it is voluntary and pro-
tected.” It also encourages member countries to provide com-
prehensive sexuality education because evidence suggests
that it promotes the delay of initiation of sex, and safe sex
behavior. Encouraging adolescents to delay sexual debut and
protecting them from harms of sexual intercourse does not
therefore mean disregarding that adolescents can be sexually
desirous, and engage in normative sexual conduct.
The African Committee of Experts on the Rights and
Welfare of the Child that monitors the implementation of the
ACRWC has not yet interpreted the provisions of the
ACRWC regarding sexuality. However, an analogy could be
drawn with the right to self-protection and the right to be
Kangaude and Skelton 9
protected from HIV recognized in Article 14(1)(d) of the
Protocol to the African Charter on Human and Peoples’
Rights on the Rights of Women in African (Women’s Rights
Protocol). The right to protection from harms of sexual con-
duct should be envisaged as having the components of the
right to self-protection and the right to be protected from
harms of sexual conduct. In interpreting Article 14(1)(d) of
the Women’s Rights Protocol, the African Commission on
Human and Peoples’ Rights (African Commission) which
monitors the implementation of the Women’s Rights Protocol
stated that the right to self-protection and to be protected
entails obligations of states to create an enabling, supportive,
legal, and social environment that empowers women, includ-
ing provision of information, education, and sexual and
reproductive services.13 Drawing upon the African
Commission’s interpretation, it could be argued analogously
that states should create an enabling, supportive, legal, and
social environment that empowers adolescents to enjoy the
right to self-protection and to be protected from the harms of
sexual conduct. In General Comment 15, the CRC recog-
nizes that children have the right to control their health and
body, including sexual and reproductive freedom to make
responsible choices, and that to enjoy this right they need
access to a range of facilities, goods, services, and enabling
conditions (para 24).14
The CRC also recognizes that children’s capacity for
autonomy is an evolving one, and that states ought to balance
protection with the evolving capacities of the child. It is in
this regard, that the Committee, in General Comment 20,
advised States parties not to punish adolescents for engaging
in nonexploitative sexual conduct (para 40).
The CRC has also encouraged states to ensure that poli-
cies about children involve the voice of children. As noted at
the beginning of this article, sometimes what has been articu-
lated in the interests of children reflects the interests of adults
and not children themselves. Participation is perhaps the
most challenging in terms of sexuality, because parental and
institutional interests tend to overshadow the child’s interests
and voice. There is a common misconception that allowing
the adolescent to make decisions about sexuality would inev-
itably be perilous for the adolescent, especially the girl.
Associated with this is the idea that sexuality education and
access to contraceptives such as condoms would promote
sexual promiscuity among adolescents. Socializing agents
including parents, teachers, and health providers therefore
hinder the participation of children and adolescents by with-
holding information, or giving biased information, such as
focusing only on the dangers of sex (Macleod, 2009). The
case of CKW is illustrative of how adults suppress children’s
voices, because in this case, the child had asked the Court (of
adults) why he was being prosecuted for consensual sexual
conduct when adults are not prosecuted for similar acts. The
Court, reflecting the anxieties of adults, and masquerading
under the best interests of the child, affirmed that adolescents
engaged in consensual sexual activity would be prosecuted.
The Court effectively silenced the voice of the child, and
ironically, in the best interests of the child.
The Rationale for Reforming Age of
Consent Laws
Colonial age of consent laws are not only sexist and patriar-
chal in origin, but are in the first place not designed to protect
African girls and boys from harms of sexual conduct but
were designed to advance the imperialist goals of the colo-
nial masters. Most African countries now have constitutions
that recognize human rights and are party to various interna-
tional and regional treaties including treaties on the rights of
the child. Punishing adolescents for engaging in consensual
sexual conduct fails to respect their human rights. It is not
necessary to prosecute adolescents for engaging in consen-
sual sexual conduct to control teenage pregnancy, address
sexual violence, or curb the spread of HIV.
Rather than prescribe a model for states to follow in
reviewing their age of consent laws, the authors suggest that
states should keep in mind that adolescents can have sexual
desire, which is normative, and that adolescents need both
protection from harmful sexual conduct and support for
development of sexual agency. Age of consent laws should
balance support and protection, and to achieve this, the law
must recognize the evolving sexual agency of adolescents,
and their capacity for sexual desire. The adolescent may
express sexual desire and voluntarily seek sexual pleasure,
but that does not mean they ought not to be protected from
relationships that are potentially exploitative. In the Charo
case discussed above, the judge had challenges reconciling
the law which suggests that children below 18 years were
incapable of sexual desire, and the reality of the girl of 14
years who expressed sexual desire. The court decided that a
child who was capable of sexual desire be treated like an
adult for the purposes of defilement law. Although the deci-
sion was technically wrong, it is argued that it is the law that
was problematic in the first place for constructing all adoles-
cents below 18 years as incapable of sexual desire.
African traditional systems did not have the concept of
sexual consent based on age, but rather, the perceived matu-
rity of the individual. Following puberty, the post-pubescent
would be prepared for adult sexual life. An important advan-
tage of this, especially for cultures that also provided the
adolescent with comprehensive sexuality education and
counseling, is that the sexual agency of the adolescent was
recognized, and this affirmation was empowering for the
adolescent. This stands in contrast to some of the Western-
derived sexuality education programs on the African conti-
nent that fail to help adolescents understand their bodies and
sexual desire. However, puberty may not necessarily coin-
cide with psychological maturity. The challenge therefore is
how to fashion age of consent laws to both nurture the ado-
lescents’ developing sexuality and protect the same adoles-
cent from harmful sexual contact.
10 SAGE Open
One approach is to set one age limit above which the per-
son is deemed to have capacity to consent to sexual activity,
and below which the person does not have capacity. Many
African countries adopted this approach from colonial laws.
An alternative approach which is rather novel on the conti-
nent, is the two-tier framework adopted by South Africa.
Although technically the age of consent in South Africa is 16
years, the law does not criminalize adolescents between 12
and 16 years who engage in consensual sexual conduct, so
that 12 years is the lower age limit. Such a law is empower-
ing for its recognition of sexual agency for adolescents of
above 12 years.
The challenge with the one-tier age of consent framework
is to find the ideal age that demarcates capacity to consent
from incapacity. When it is set too high, say 18 years, it is
likely to undermine the autonomy of adolescents who by that
age are already mature and capable of consenting to sex, and
would result in the criminalization and stigmatization of a
significant number of sexually active young people. If it is
set too low, for example 13 years, there is a greater risk of
exposing young people to harm, who though could partici-
pate in sexual activity voluntarily are nevertheless vulnera-
ble to predatory adults. The advantage with the two-tier
approach employed by South Africa is that it is more flexible
at balancing protection and support because young adoles-
cents are protected from sexual relationships with persons
much older than them, but at the same time have the freedom
to explore their sexuality with peers. However, even the
South African position has been challenged for setting the
lower limit at 12 years when new evidence shows that ado-
lescents of 11 years can understand issues of sexuality just as
well (Strode & Essack, 2017).
Limits of Age of Consent Criminal Law
as an Instrument for Social Reform
Criminal law has been championed as a means for pro-
moting gender equality, and freedom from sexism and
sexual violence. However, there is a growing recognition
that criminal law alone fails to address these challenges,
and in fact, criminal law may also inflect discourses of
power that disempower those it seeks to protect, for
instance, by constructing the “ideal” sexual violence vic-
tim as a woman or girl who is innocent, passive and
defenseless (Kelly, 2008; Kitzinger, 1988) . An example is
the Charo case where the adult offender was acquitted
because the sexually desirous child was not regarded as an
ideal victim. Age of consent laws that are punitive toward
adolescents render sex per se as the problem. This
approach shifts attention away from structural antecedents
that create conditions for problems related to sex such as
teen pregnancy, including failure to provide quality com-
prehensive sexuality education, contraceptive services,
and an economic environment in which adolescents are
able to exercise sexual choices (Gruber, 2012).
Using criminal law to address social problems associated
with sex between adolescents such as teenage pregnancies
would most likely operate at the symbolic level, where some
few, and most probably impecunious boys, are demonized
and punished as scapegoats for the failure of states to address
structural causes of teenage pregnancies and sexual abuse
(Martin, 1998; Parikh, 2012). Punitive approaches to adoles-
cent sexual conduct might give the impression that states are
doing something about protection of adolescents from harms
of sexual conduct, but this undermines the support adoles-
cents need to cultivate harmonious, gender equitable and
respectful relationships between and among them. Also, gen-
der stereotypical age of consent laws only serve to reproduce
sexist and misogynist ideologies.
At best, criminal law can only be a blunt tool for promot-
ing positive sexual behavior among adolescents, or indeed,
ensuring their right to self-protection and protection from
harms associated with sexual conduct (Archard, 2015). Other
measures that are crucially important and would better
address teenage pregnancies, gender inequality, and the his-
torical and cultural marginalization of girls, include, sexual-
ity education, information, and provision of sexual health
services (Skelton, 2015). It would be greatly beneficial for
adolescents if states focused on such measures, rather than
on punitive approaches toward adolescent sexuality.
Conclusion
Regulation of sexual conduct between or with children has
always existed in Africa, but age of consent criminal laws are
a colonial provenance that negatively influenced Africa’s
attitudes toward adolescent sexual conduct. Colonial age of
consent laws are inherently patriarchal, and their imposition
on African communities, designed primarily to serve the
colonialist’s imperialist goals, were appropriated by African
males to serve their own patriarchal interests. As a conse-
quence, age of consent laws have tended to marginalize the
sexuality of adolescents, and especially erase the sexual
autonomy and agency of girls. Human rights commitments
obligate states to reform colonial age of consent laws which
only serve to perpetuate sexism and misogyny and are harm-
ful to adolescents. After all, despite the overzealous crimi-
nalization of adolescent sexual conduct, such laws have
failed to robustly protect adolescents, especially girls, from
harms of sexual conduct. To advance gender equality and
sexual health and rights of adolescents in Africa, states
should review age of consent laws and align them with the
principles of the rights of the child as the CRC has advised.
Caution should be exercised, however, that in drafting new
sexual offences laws, patterns of patriarchal control of ado-
lescent sexual expression, particularly girls’ sexual expres-
sion, do not reinvent themselves in tough new laws that are
punitive toward adolescents themselves as has been in the
case in Kenya and Uganda. New sexual offences laws should
recognize adolescents as having an evolving capacity for
Kangaude and Skelton 11
sexual agency, and should, on one hand, protect them from
exploitative sexual conduct, and on the other, support their
developing sexual agency.
Acknowledgments
The authors are grateful to the peer reviewers for their comments on
the manuscript.
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect
to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, author-
ship, and/or publication of this article.
Notes
1. Committee on the Rights of the Child (CRC) General Comment
20: The implementation of the rights of the child during ado-
lescence UN Doc CRC/C/GC/20 (December 6, 2016).
2. 2014 (2) SA 168 (CC).
3. Criminal Law (Sexual Offences and Related Matters)
Amendment Act Amendment Act No. 5 of 2015 (South
Africa).
4. Petition No. 6 of 2013 (High Court of Kenya).
5. The Sexual Offences Act 3 of 2006 (Kenya).
6. [2015] ZWHHC 106, CRB B467/14 (High Court of
Zimbabwe).
7. Khamasi uses the terms “ngwiko” whereas Kiragu uses
“ngweko” to refer to the same sexual practice.
8. Section 2(2)(d) of the Combating of Rape Act 8 of 2000
(Namibia).
9. The Penal Code (Amendment Act) 8 of 2007 (Uganda).
10. HH 143-11, CRB 5,320/10 (July 21, 2011; High Court of
Zimbabwe).
11. United Nations, Program of Action (PoA) adopted at the
International Conference on Population and Development,
Cairo, 5-13 September 1994. Report of the International
Conference on Population and Development (ICPD) UN Doc
A/CONF.171/13 (1994) para 7.34.
12. Martin Charo v. Republic Criminal Appeal No. 32 of 2015;
[2016] eKLR (High Court of Kenya).
13. African Commission on Human and Peoples’ Rights. General
Comments on Article 14 (1)(d) and (e) of the Protocol to the
African Charter on Human and Peoples’ Rights on the Rights
of Women in Africa.
14. CRC General Comment 15: The right of the child to the enjoy-
ment of the highest attainable standard of health (art. 24) UN
Doc CRC/C/GC/15 (April 17, 2013).
ORCID iD
Godfrey Dalitso Kangaude https://orcid.org/0000-0001-9433-8974
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Author Biographies
Godfrey Dalitso Kangaude is a LLD candidate with the
Department of Private Law, University of Pretoria. His research
interests are the intersection of culture, gender and sexuality, human
rights and law and with focus on adolescent and childhood
sexualities.
Ann Skelton is director at the Centre for Child Law and a professor
of Law at University of Pretoria. She was appointed as a member of
the UN Committee on the Rights of the Child in 2017.
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