An Analysis Of The Adequacy Of The Legal Framework In Protecting The Rights Of Child Offenders In Kenya

Abstract

One half of the Kenyan total population is below 18 years of age.1 In tandem to this is the fact that 45 % of the Kenyan population is living below the poverty line.2 Coupled with the challenges of modernity amongst them being rapid population growth, poverty, overcrowding in poor informal urban settlements, the disintegration of the family and inefficient education system puts children3 who are a vulnerable group in a precarious situation. More often than not children receive inadequate care and protection from their primary care givers and in the quest for survival they end up engaging in criminal activities.4 However, no allowance is made to the fact that it is often the law that is in conflict with their survival behaviour and the harsh realities in their lives.5 The end results are that children in need of care and protection who come into contact with the law find themselves entangled in the adult criminal justice system. They are arrested and detained by police, tried through the formal and rigid judicial system, sent to correctional institutions including prison.6 The process of arrest, trial and custody for children in conflict with the law destroys their childhood as they are denied their right to family life, care, protection, socialization, play and education. In effect the children’s growth and development is adversely affected noting that as recognized by the African Charter on the Rights and Welfare of the Child (ACRWC),7 “a child occupies a unique and privileged position in the African Society and that for a full and harmonious development in his personality, the child should grow up in a family environment of happiness, love and 1 KNBS ‘Highlights of the Socio-Economic Atlas of Kenya’ (KNBS 2009) 2 Katindi Sivi Njonjo , Exploring Kenya’s Inequalities: Pulling Apart or Pooling Together (KNBS and SID 2013) 3 Adoption of the definition of a child as under Article 2 of the African Charter on the Rights and Welfare of the Child (ACRWC) and Children Act Chapter 141 Laws of Kenya “ human being below the age of 18” 4Nikhil Roy, Mabel Wong, ‘Juvenile Justice-Modern Concepts of Working with Children in Conflict with the Law’ (Save the Children UK 2012) 5 ibid 6 ibid 7African Charter on the Rights and Welfare of the Child (ACRWC) Ratified by Kenya on 25th July 2000 2 understanding.”8 Commission of crime by children to a large extent is a reflection of society’s failure to provide a protective and conducive environment for its children as a large number of children in conflict with the law are socio-economic victims, denied their rights to shelter, care, protection, health and education.9 Thus, safeguarding the rights of children who come in contact with the law whether as children in conflict with the law10 or children in need of care and protection11 becomes a primary concern. Affirmation that children are bearers of certain minimum universally agreed standards crystallized as children human rights is evidenced by the United Nations Convention on the Rights of the Child (CRC) 12 being the mostly widely ratified international human rights treaty in history.13 The African Charter on the Rights and Welfare of the Chid (ACRWC) the first regional treaty to address children rights14 retains the spirit and the letter of the CRC whilst capturing the unique situation facing the African child. These instruments provide a broad range of children rights which can be classified into developmental, participation and protection rights. Provisions for the rights of children in conflict with the law cut across the spectrum. There are international standards and norms tailored for child justice, they include: United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules),15 United Nations Guidelines for the Prevention of Juvenile Delinquency (Riyadh Guidelines)16 and the United Nations Rules for the Protection of Juveniles Deprived of their 8Preamble of the ACRWC ratified by Kenya on 25th July 2000 9Roy and Wong (n 4) 10 Term that also refers to child offenders referring to anyone under the age of 18 years who comes into contact with the justice system as a result of being suspected or accused of committing an offence as defined by United Nations Children’s Fund, ‘Child Protection Information Sheet: Children in Conflict with the Law’ 2006 UNICEF 11 Adoption of the definition as under Section 119 (1) Children Act Cap 141 Laws of Kenya 12Ratified by Kenya on 30th July 1990 13The CRC has been ratified by 195 countries 14UNICEF, ‘Eastern and Southern Africa: For Children & Youth’ http://www.unicef.org/esaro/children_youth_5930.html < accessed 7 January 2016> 15 United Nations General Assembly, ‘United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules)’ adopted by the General Assembly on 29 November 1985 (A/RES/40/33) 16 United Nations General Assembly, ‘United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines)’ adopted by the General Assembly on 14 December 1990 (A/RES/45/112) 3 Liberty (JDLs Rules).17 The international guidelines and rules though generally considered to be non binding take on a strongly persuasive quality akin to law when read together with other related instruments.18 In addition several provisions of the Beijing Rules, the Riyadh Guidelines and the JDLs Rules have been incorporated in the CRC. The principles that run through the international instruments include: the best interest of the child, non – discrimination, dignity, participation, right to life, survival and development, detention as the last resort, and primacy of alternative measures to the juvenile justice system.