Best Interest Principle Guidelines in the Trial Process; an Analysis of the Criminal Justice System in Kenya

Abstract

2 behavior is inconsistent, with what is expected by the rules put in place to govern the society and maintain law and order.5 Central to the concept of justice for minors, is a generally accepted principle that a child’s best interest, shall be of primary concern in all matters touching on the child, in particular act as a guiding principle in the children’s court.6 Article 53(2) of the Constitution of Kenya, 2010 and Section 4(3) of the Children Act 2001; provide that a child’s best interest be treated as the paramount matter of consideration when issues of the child’s welfare arise.7 There are however immense challenges, shortcomings and breaches of the best interest principle, as observed when children end up being locked in jails and their interests not considered during the trial process. An example of the challenges can be seen in the Kenyan cases of Julius Muriira & 3 others v Republic,8 Edward Ochieng Ouko v Republic9 and Kazungu Mkunzo & Another v Republic,10 where the court advised that such errors, as sentencing to death persons below eighteen (18) years of age should be avoided. In addition, it was also pointed out that the speed in resolution of disputes is of great importance to the trial process, hence the provisions of time limits within which to try child offenders.11 Moreover, the best interest of the child is served by ensuring they have minimal contact with the justice systems and more with guardians and parents to enable their development be guided effectively. The Children Act remains the primary Kenyan legislation with provisions, for the obligations legal or otherwise, of bearers of specific duties; this includes parents, civil society 5 Richard et al, Delinquency and Opportunity (Taylor & Francis Group 1960) 2-3. 6 Anne-Catherine (n 4) 57. 7 Constitution of Kenya 2010 & Act No.8 of 2001; Petition No.382 of 2014, Refugee Consortium of Kenya & another v Attorney General & 2 others [2015] eKLR