Kenya's High Court Rules Cousin Relationships Are Not Incest: Lessons for Uganda’s Sexual Offences Bill 2024 Review

As Uganda’s Parliament continues public consultations on the Sexual Offences Bill 2024, legal minds and policymakers might find it useful to reflect on a significant ruling from Kenya’s High Court. In WOO v Republic [2016] eKLR, the court held that sexual relations between cousins are not classified as incest under Kenya’s Sexual Offences Act.

The Kenyan Court’s Reasoning

The High Court of Kenya ruled that sexual relations and marriages between cousins do not fall within the legal definition of incest as outlined in the Sexual Offences Act. In its decision, the court highlighted the following key points:

Sections 20(1) and 22(1)(2) of the Sexual Offences Act explicitly list the familial relationships that constitute incest. The absence of cousins from this list was deemed deliberate and not an oversight by the Kenyan Parliament.
The court recognized that in various communities within Kenya, including among Hindus, Muslims, and some African ethnic groups, cousin marriages and relationships are culturally acceptable and not viewed as incestuous.
The court found that the trial magistrate had no authority to expand the list of prohibited relationships under the law. Including cousins in the definition of incest, when the statute did not, was seen as a misinterpretation of the legal provisions.

Implications of the Ruling

This ruling clarifies that, under Kenyan law, sexual relations between consenting adult cousins are not criminalized. It also underscores a key principle in statutory interpretation: courts should not legislate from the bench by inserting provisions that lawmakers deliberately excluded.

Read the full case below

Could Uganda Follow Suit?

While Kenya and Uganda share a common law legal framework, each country’s legislative approach to sexual offences remains distinct. However, this ruling raises an important question for Uganda’s ongoing consultations on the Sexual Offences Bill 2024:

Uganda’s Sexual Offences Bill 2024 Provides a Distinct Approach.

While Kenya’s High Court ruling sets an interesting precedent, it remains to be seen whether Uganda will take a similar or different approach in its Sexual Offences Bill 2024.

The proposed Clause 15 of the bill explicitly defines incest and lists several prohibited relationships, including:

Parents and children (father, mother, son, daughter, etc.)
Grandparents and grandchildren
Siblings (including half-siblings)
Uncles, aunts, nieces, and nephews
Stepfamily relations (stepmother, stepfather, stepchildren)
In-laws (husband’s father, wife’s mother, daughter’s husband, etc.) Read the bill below

However, the notable omission in the Ugandan bill just like in Kenya is cousins. It could be possible that the law makers are leaving it to the public and courts to define who a cousin is basing on the list given thus begging for more questions. Will Uganda maintain this exclusion, or could legal debates push for its inclusion?

Cultural Exceptions and The Legal Gray Areas in Uganda’s Sexual Offences Bill 2024

Interestingly, Clause 15(3) of Uganda’s Sexual Offences Bill 2024 allows for exceptions where sexual acts between prohibited relatives are permitted under the culture or custom of an indigenous Ugandan community. This clause aligns with Kenya’s reasoning that cultural context plays a key role in defining incest.

The legal position on cousin relationships remains a gray area in many common law jurisdictions. While countries like Kenya exclude cousins from their incest laws, other nations—such as some U.S. states and European countries—treat cousin relationships differently, either permitting or restricting them based on societal norms.

In the United States, the legality of having sexual relations with a cousin depends on the state and the type of relationship

Georgia and Hawaii: First cousins can marry and have sexual relations read more https://law.justia.com/codes/georgia/2020/title-19/chapter-3/article-1/section-19-3-3/
Idaho: First cousins can have sexual relations but cannot marry read more https://legislature.idaho.gov/statutesrules/idstat/title32/t32ch2/sect32-206/
Illinois: First cousins can have sexual relations if both are 50 or older, or if one is infertile. read more https://www.ilga.gov/legislation/ilcs/documents/075000050K212.htm
New Jersey and Rhode Island: Incest between consenting adults is not a criminal offense, but marriage is not allowed read more https://www.justia.com/criminal/offenses/sex-crimes/incest-laws/
Ohio: Incest between consenting adults is only allowed if one party is not a parental figure to the other read more https://law.justia.com/cases/ohio/supreme-court-of-ohio/2007/2007-ohio-606.html
Virginia: Cousins can marry, but it is illegal to marry an ancestor, descendant, sibling, aunt, uncle, niece, or nephew
read more https://vsb.org/common/Uploaded%20files/docs/pub-fa-marriage.pdf
North Carolina: First cousins can marry, except in the case of "double first cousins
read more https://www.justia.com/criminal/offenses/sex-crimes/incest-laws/

Will Uganda Follow Kenya’s Lead?

Given the shared common law background of Kenya and Uganda, Kenya’s ruling in WOO v Republic could influence Ugandan courts in future incest-related cases. If Uganda’s Parliament ultimately excludes cousins from the final version of the bill—just like Kenya—this could signal legal consistency across East Africa.

For now, the legal community and the public remain on high alert as discussions on the Sexual Offences Bill 2024 continue. Will there be a spillover effect from Kenya’s ruling? Only time will tell.

Final Thoughts

The intersection of law, culture, and morality continues to shape how incest laws are defined. While some may view cousin relationships as taboo, others see them as a legitimate cultural practice.

The key legal takeaway? Incest laws must be clearly defined by Parliament—not reinterpreted by the courts.

As Uganda wades through these murky legislative waters, one thing is certain: the debate on incest and cousin relationships is far from over.

What are your thoughts? Should Uganda take a different approach, or does Kenya’s ruling provide a solid precedent?

Join the discussion in the comments By Waboga David The rule of law is the beating heart of justice