Per­ils of child of­fend­ers in a crim­i­nal jus­tice sys­tem that ig­nores them

Nairobi Law Monthly - - Analysis - BEVERLINE ON­GARO

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.

Pro­gres­sive pro­vi­sions

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

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