Strengthening Access to Justice for a Child in Conflict With the Law: a Case for Law Reform

Abstract

Access to justice is a core human right embodied in the Constitution of Kenya, 2010, and operationalized by Kenya’s domestic legal framework. Access to justice is guaranteed to every person in Kenya. The constitutional and legal framework, however, fails in ensuring children in Kenya, who are in conflict with the law, access justice. This is despite ratification of some of the international and regional legal instruments touching on the rights of children. The challenge of children in conflict with the law, being unable to access justice, is attributable to the lack of procedural rules ensuring the proper realization of the rights of children, glaring gaps in the implementation of the existing law and the failure to actualize some of the core concepts enshrined in the international and regional framework in the Children Act. This Study explores the problem of access to justice for children in conflict with the law. The focus of the analysis being both the international and the domestic legal framework, it critiques Kenya’s existing domestic legal framework against the Convention on the Rights of the Child (CRC) and the African Convention on the Rights and Welfare of the Child (ACRWC). The Study further examines the administration of juvenile justice and all the encompassing rights including the right to survival and development for the child, the right to be heard and the presumption of innocence for children in conflict with the law. Juvenile justice is very broad. It includes child offenders and children in need of care and protection of the law who are collectively referred to as children in conflict with the law within this Study. The Study finds Kenya’s Children Act inadequate in ensuring access to justice for children in conflict with the law and recommends the review of the Act to ensure its full compliance with the international and regional framework. The recommendations on review of the Children Act include the full operationalization of Article 37 and 40 of the CRC and Article 17 of the ACRWC, and the implementation of a proper institutional framework to ensure the challenge of accessing justice by children in conflict with the law is effectively dealt with.