Juvenile Justice System in Contemporary Child Care and Protection: Emerging Issues, Challenges and Opportunities

Introduction

This write-up aims at examining the legal, regulatory and institutional framework of Kenyan law in respect to children in conflict with the law. The juvenile justice system is examined to identify the emerging issues, challenges and opportunities. Children in conflict with the law are child offenders and children in need of care and protection. Juvenile justice involves the recognition of the rights of these children; the provision of equal protection of these rights; the equal access to judicial mechanisms for such protection; the respectful, fair, impartial and expeditious adjudication of claims within the judicial mechanism; and the equal and humane treatment of the children incarcerated in enforcement of the law.[1]

Challenges

The Children Act has been condemned for its failures resulting in violation of the rights of children in conflict with the law as follows:-[2]

a)     First, the Children Act does not provide for concepts such as minimum age of criminal responsibility, diversion, restorative justice system, and crime prevention mechanisms

b)     Second, there are no procedural rules put in place to ensure enjoyment of the various guarantees in the Act like legal aid, privacy, and expeditious trial among others.

c)     Third, there are insufficient institutional safeguards like separate child friendly facilities like the courts, remand and rehabilitation homes and trained personnel which hinder enjoyment of these guarantees.

Section 14 of the Penal Code Cap 63 Laws of Kenya provides:-

“14(1) A person under the age of eight years is not criminally responsible for any act or omission.

(2) A person under the age of twelve years is not criminally responsible for an act or omission, unless it is proved that at the time of doing the act or making the omission he had capacity to know that he ought not to do the act or make the omission.

(3) A male person under the age of twelve years is presumed to be incapable of having carnal knowledge.”

It has be argued that the above provision on the minimum age of criminal responsibility for child offenders allows for children as young as eight years to appear in court.[3] This is contrary to best practices because such child offenders are too young to appreciate the impact of their choices or follow in the court process during their trial.[4]

There is a dilemma sentencing of almost-adult child offenders in serious crimes and in sexual offences where the SOA provide for a punishment without prescribing similar punishment for children offenders

In Daniel Langat Kiprotich v State [2018] eKLR, the court stated as follows:

“Since the statutory scheme provides that such a child cannot be sent to prison and since the law further provides that such a child can only be sent to a boarstal institution for no more than three years, the options are limited to trial Courts even where on analysis and evidence such a Court might be persuaded that the almost-adult it is dealing with is a danger to society; and has failed to acknowledge or come to terms with his or her errors.

A similar dilemma is created when the offender has already turned eighteen at the time of conviction or at the time of appeal as is the case here. Where the offence committed was a particularly vicious or serious one, the option of releasing such an offender back to the society is not an attractive one. It may even be downright dangerous for the society. Further, it might deny the individual offender a true opportunity to reflect on his actions in a custodial setting and take the rehabilitative turn.

While these dilemmas call for a reform to our juvenile justice system to provide a more nuanced statutory scheme, I am persuaded, in following the Court of Appeal in the Dennis Cheruiyot Case and the JKK Case, that when faced with the situation such as the one we have in this case, the solution lies in section 191(1)(l) of the Children’s Act: to deal with the offender in question in any other lawful manner. In this case, I have followed these two precedents regarding the right approach to sentencing is such cases. In addition, I have taken into consideration the following particular factors in the case at hand namely:

a. the fact that the Petitioner was accompanied by five other people during the commission of the robbery;

b. the fact that the assailants were armed – one with a gun and the rest with pangas and clubs;

c. the fact that the Petitioner committed two separate offences of armed robbery;

d. the fact that the offences took place on the highway which poses particular threat to road users; and

e. the fact that the only mitigating circumstances are the fact that the Petitioner was a minor and that he was a first offender.”

In S C N v Republic [2018] eKLR it was held:-

“21. It is not disputed, as the record shows, that the Appellant was aged 17 at the time he committed the offence. He impugns the decision of the trial court in imposing a life sentence on him despite the fact that he was a child at the time the offence was committed. He argues that such sentence was in contravention with Article 53 of the Constitution in that: the best interests of a child were not considered as paramount; and that his incarceration ought to have been for the shortest appropriate period of time in line with Article 53(1)(f)(i).

22. Section 8(2) of the Sexual Offences Act, under which the trial court had passed the sentence provides as follows:

“(2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life” (Emphasis supplied)

I note, however, that the trial magistrate did not wrestle with the question of the age of the appellant at the time of commission of the offence, in determining the sentence.

3. The dilemma created by this scenario in which the Sexual Offences Act provides for a specific sentence, but is silent about the age of the offender, can be dealt with by reference to Section 191 of the Children’s Act.

24. Still, there is the question as to what the trial court is to do in respect of minors who commit offences but attain the age of majority before sentencing. The statutory scheme stipulates that a child above sixteen years old can only be held in a borstal institution for a maximum period not exceeding three years. However, Section 191(1)(l) Childrens Act provides for an offender to be dealt with in any other lawful manner.

…

26. In R v Dennis Kirui Cheruiyot [2014] eKLR, the Appellant was aged 20 years at the time of sentencing, but was 15 years when the offence was committed. He was convicted of murder. The court sentenced him to life imprisonment. On appeal, the Court of Appeal reduced the sentence to 10 years imprisonment after noting the dilemma a court faces in sentencing an offender who was a minor turned into an adult at the time of sentencing or at the time of an appeal.

27. The Court of Appeal in R v Dennis Kirui (supra) relied on JKK vs Republic (2013) eKLR, a decision of the Court of Appeal sitting in Nyeri. There, a minor charged with murder was convicted and sentenced to death. The Court found that the Appellant was under 18 years of age at the time of committing the offence although at the time of the sentence four years had elapsed making him about 21 years of age. The Court reduced the sentenced from the death penalty to a custodial sentence of 12 years. The Court reasoned as follows:

“The purposes of the sentences provided for under the Children Act are meant to correct and rehabilitate a young offender, i.e. any person below the age of 18 years while taking into account the overarching objective is the preservation of the life of the child and his best interest. A death sentence or a life imprisonment are not provided for but when dealing with an offender who has attained the age of 16 years, the court can sentence him in any other lawful manner. The offence committed by the appellant is very serious, an innocent life was lost, the appellant though probably a minor when he committed the offence must serve a custodial sentence so that he can be brought to bear the weight and responsibility of his omission or lack of judgment, by serving a custodial sentence. We are of the view that the appellant who is now of the age of majority cannot be released to the society before he is helped to understand the consequences of his mistakes, which can only happen after serving a custodial sentence”

28. I have perused the appellant’s mitigation in the proceedings. All he said was that he was innocent and sought a non-custodial sentence. The appellant was seventeen years in 2012, and is therefore presently twenty three years old. Applying the principles from these authorities, I would reduce the appellant’s sentence to ten years.”

Other Challenges include;-

a)     There are no sufficient separate courts for children. In most courts both adult and children courts are housed in same building. In some cases children matters are heard in camera in ordinary courts.

b)     Lack of awareness of children’s rights and the principles of juvenile justice

c)     The prohibition of publication of identification information of child offenders is limited to court proceedings and does not include other stages such as arrest and investigation.

d)    There is no state sponsored legal representation for children

e)     Teenage pregnancies

f)      The plight of street children

g)     Sexual offences in respect to children

Opportunities

International law

There is a comprehensive legal framework under international law for the treatment of children in conflict with the law. These are:-

a)     the Convention on the Rights of the Child (CRC)

b)     the African Charter on the Rights and Welfare of the Child (ACRWC)

c)     the United Nations guidelines on juvenile justice. The guidelines include the United nations Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules), The United nations Rules for the Protection of Juveniles Deprived of their Liberty (JDL Rules) and the United Nations Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines).

The CRC and the ACRWC enshrine the following four principle that are critical in juvenile justice:-

a)     Best interest of the child[5]

b)     Non-discrimination[6]

c)     The right to life, survival and development[7]

d)    Right to be heard[8]

The CRC and the ACRWC in Articles 37 and 40and 17 respectively set out the requirements of a child rights-oriented juvenile justice system including:-

a)     The establishment of separate laws, institutions and procedures applicable to children accused of committing crimes;[9]

 The requirement of separation relates to various aspects traversing the different stages of trial. From the moment of a child’s arrest through to subsequent stages of the criminal procedure, international law requires a system which is unique to child offenders and distinct from the adult criminal justice system. This requires the establishment of specialised units within the police, judiciary, court system, prosecutor’s office and provision of specialized defenders or other representatives for children.

b)     The setting of a minimum age of criminal capacity;

International law acknowledges the link between age and criminal capacity. There is however no international standard on the age of criminal capacity. Article 40 (3) (a) of the CRC requires state parties to establish ‘minimum age below which children shall be presumed not to have the capacity to infringe the penal law.’ This obligation is reiterated in Article 17(4) of the ACRWC.  

c)     The principle of detention as a last resort and for the shortest period of time;

Deprivation of liberty, if used, should only be used as a measure of last resort and for the shortest period of time.

d)    The desirability of diversion;

Diversion are strategies developed in the juvenile justice system to prevent children from committing crime or to ensure that they avoid formal court action and custody if they are arrested and prosecuted.[10] Tt involves the referral of cases away from formal criminal court procedures where there is enough evidence to prosecute. The theory argues that contact with the justice system burdens a child with a label that makes the child behave according to such a label. The theory further explains that labelling encourages stigma, which fosters low self-esteem and, eventually, such low self-esteem prompts anti-social behaviour.[11]

e)     Procedural guarantees in a juvenile justice framework and

f)      The limitation of certain sentences and need for alternative dispositions at the sentencing stage.

In relation to sentencing of children, the standards in international children’s rights demand that first the aims of sentencing must always be upheld and secondly, there must be restrictions on sentences that may be imposed on children.[12]

Municipal Laws

The legal framework on juvenile justice is in Kenya is mainly captured in the Children Act 2001 and the Constitution of Kenya 2010. Article 2 (6) of the Constitution incorporates treaty law ratified by Kenya. Article 21 (3) obligates State organs and all public officers to address the needs of vulnerable groups in society including children and further in Article 21 (4)buttresses Article 2 (6) by providing that the government must fulfill its treaty obligations through law.

Kenyan law also provides all the four principles of juvenile justice as follows:-

a)     Best interest of the child[13]

b)     Non-discrimination[14]

c)     The right to life, survival and development[15]

d)    The right to be heard[16]

Articles 49 of the Constitutionand section 186 of the Children Act make comprehensive provisions for due process rightsand the rights of arrested persons. Part VI of the Children Act establishes special Children’s Courts and provides for their jurisdiction. These courts have jurisdiction to hear all matters on child offenders except where the child is charged for murder or alongside an adult.

Under section 190(1) and 190(2) children are protected from capital punishment, corporal punishment and imprisonment. Section 190(3) protects children of tender years from being committed to rehabilitation schools.

In C.K. (A Minor) v Republic [2018] eKLR it was held:-

“In a criminal trial for defilement, the consequences of which upon conviction is for adults imprisonment for life, legal aid for a child facing such charge is paramount, in the event he is otherwise, as here treated as an adult.”

In P O O (A Minor) v Director of Public Prosecutions & another [2017] eKLR it was held:-

“29. Does a boy under 18 years have the legal capacity to consent to sex? Haven’t both children defiled themselves? Shouldn’t both then be charged or better still shouldn’t the Children’s Officer be involved and preferably a file for a child in need of care and protection ought to be opened for both of them. I think these are children who need guidance and counselling rather than criminal penal sanctions. ? I really think in this kind of situation should be re-examined in the criminal justice system. In the English case of R vs. G (Appellant) the Baroness Hale of Richmond in her opinion in the House of Lords stated that:-

“As sexual touching is usually a mutual activity, both the children involved might in theory be prosecuted…the person penetrated may be the offender… Obviously ... there will be wide variations in the blameworthiness of the behaviour… Both prosecutors and sentencers will have to make careful judgments about who should be prosecuted and what punishment, if any, is appropriate”

30. MR OLUOCH’s sentiments are taken in account but I honestly think that in exercising its prosecutorial powers, the DPP ought to pay fidelity to section 4 of the Office of the Director of Prosecutions Act 2013 (ODP Act) which provides that “In fulfilling its mandate, the Office shall be guided by the Constitution and the following fundamental principles-

(b) impartiality and gender equity;

(c) the rules of natural justice;

(f) the need to serve the cause of justice, prevent abuse of the legal process and public interest

31.What transpired in this matter did not in my opinion live up to the ideals espoused in the ODP Act. The mere assertion by the petitioner that he was a child ought to have been investigated at the first instance and a children’s officer should have been assigned the duty of getting more information about the minor. I find that the appellant was discriminated against on the basis of sex in that he was charged alone but in reality they both needed protection against sexual activities.”

In Republic vs Matanio Katana[2004] eKLR it was held:-

“It will also be seen that while those convicted of murder have to be punished by death in case of child offender, no punishment by death is permitted. The procedure arrest and charge and provisions as to bail and remand arrangements of a child offender and the organization for court in certain cases to shield the children cases of death or morality is set out clearly. The period of remand are stated as six months in case of offence punishable with death. And rule 12 in case of serious offence the trial must be completed within 12 months failing which the child offender shall be discharged and case shall be dismissed and the child offender shall not be made liable again for the same offence. These provisions are at variance with provisions with the ordinary procedure of conducting criminal cases. The penal code Cap 63 Section 204 provides death penalty for the offence of murder.

…

Considering what I have stated above I am convinced that the intention of parliament in enacting Section 194 and the fifth schedule “Children Cffender Rules” Parliament intended to make law just as they have written. The meaning of the Section is clear and unambiguous. No amendments appear to have been made by the Minister yet or parliament intended Kenya to stand shoulder to shoulder with other nations of the world to protect the rights of the children of the world. And this is in keeping with modern international law.

It is clear to me that they meant just as they stated that the child offenders trial shall not be unduly delayed beyond the period of 12 months. This is also in keeping with the Constitution Section 72 thereof. From the record the period of 12 months shall expire on 30-10-04. I allow this application and order that if the accused trial shall not have been completed on that day (30-10-04) he MK shall be discharged and be set at liberty immediately.”

Emerging issues

The following are among emerging issues

a)     The determination of the age for consent in sexual offences

b)     The issue of setting a minimum age of criminal responsibility

c)     LGBTQ youth and juvenile justice system

d)    Juvenile Mediation

e)     Mental health and juvenile justice

f)      Substance abuse and the impact on the juvenile justice system

g)     Child sex trafficking

[1] King’ori Esther Waitherrero, 2015,’Strengthening Access to Justice For children in Conflict with the Law: A Case for Law Reform’, University of Nairobi, Nairobi.

[2] Ibid

[3] Ibid

[4] Madalyn K. Wasilczuk (2012) “Substantial Injustice: Why Kenyan Children are Entitled to Counsel at State Expense,” 45:291 International Law and Politics 291-333, Pg 14

[5] Article 3 of the CRC and Article 4 of the ACRWC

[6] Article 2 of the CRC and Article 3 of the ACRWC

[7] Article 6 of the CRC and Article 5 of ACRWC

[8] Article 12 of the CRC and Article 4(1) of the ACRWC

[9]

[10] Muncie, J (1999) Youth and Crime: A Critical Introduction, London: Sage 305 quoted in Wood, C (2003) Diversion in South Africa: A Review of Policy and Practice, 1990-2003 Institute for Security Studies (ISS) Paper 79 Pretoria: ISS 1.

[11] Supra n1

[12] Kurki, L “International Standards for Sentencing and Punishment” in Tonry, M and Frase, S (eds) (2001) Sentencing and Sanctions in Western Countries New York: Oxford University Press331-378 at 331

[13] Article 53 (2) of the Constitution and Section 4(2) of the Children’s Act

[14] Article 27 of the Constitution and Section 5 of the Children Act

[15] Article 53 of the Constitution Sections 4(4), 6, 7, 8, 9 and 16 of the Children’s Act.

[16] Section 4(4) of the Children’s Act.