Perils of child offenders in a criminal justice system that ignores them
December 10 is International Human Rights Day, dedicated to commemorating the Universal Declaration on Human Rights. It is an opportunity to examine how governments have honoured their obligations to protect and promote human rights. One of the best lenses to conduct such examination is from the rubric of the juvenile justice system.
Childhood is a stage in human development where all persons are susceptible to deviant behaviour, but some by providence and pronounced guidance are not caught in the intricate yet intimidating web of criminal justice system. It is true when it is considered that children are likely to be offenders because the range of their behaviour that would constitute offence is wide in comparison to behaviour by adults. This poignant fact then requires concerted efforts by actors in a criminal justice system to invest towards ensuring children within its environment are well rounded and grounded individuals.
Against this background, this article focuses on the key aspects of the Kenyan Juvenile Justice system. Kenya is a state party to the United Nations Convention on the Rights of the Child (CRC), and the African Charter on the Rights and Welfare of the Child. Kenya is obligated by these laws to inter- alia guarantee its juvenile justice system is effective, fair, just and humane, and ensure all actors in the system take into account the best-interest of juvenile offenders so that all decisions by these actors are proportionate to the circumstances of the juveniles, and that they do not accrue adverse consequences to juveniles.
Commendably, Kenya is one of the first countries to enact a specific law in respect of children, The Children's Act 2001. The Act replicates progressive provisions in the CRC and the Charter, whose aim is to safeguard children's rights.
Section 186 of the Act guarantee children offenders the right to fair trial. The right includes legal assistance provided by government and speedy conclusion of cases. This right is elaborated in the Child Offenders Rules within the fifth schedule of the Act that unequivocally provides that cases involving child offenders ought to be handled expeditiously and without unnecessary delay ( Rule 12( 1). Of relevance are the following Rules that explicitly stipulate thus: The Children's Court shall complete cases of child offenders within 3 months after they have taken pleas, failure to which those cases case shall be dismissed (Rule 12(2); children shall not be remanded for more than 6 months whenever they are being tried by courts superior to Children's Court, and if in remand after 6 months, have a right to bail ( Rule 12( 3); and where children are being tried by courts superior to Children's Court, the case shall be completed within 12 months from the time they took plea, failure to which the case shall be dismissed (Rule 12(4).
Section 190 of the Children's Act imposes restrictions on punishment that courts may impose on a child offender. In subsection (1), it states that no child shall