Juvenile justice system in urgent need of reforms

APOLLO MBOYA} REHABILITATION

The Kenya Government ratified the United Nations Convention on the Rights of the Child in and the African Charter on the Rights and Welfare of the Child in the years 1990 and 2000 respectively.

By signing this treaty, Kenya is obligated to enact legislation and provide policy framework that is aimed at protecting the rights of the child and providing guidance on interventions focusing on children.

While the legal and policy framework with regard to child rights in Kenya has improved tremendously with coming into force of the Children’s Act on March 1, 2001 which domesticated the provisions of the United Nations Convention on Rights of the Child and the African Charter on the Rights and Welfare of the Child, more still needs to be done to improve the juvenile justice system. One major area is the implementation of Diversion, which is the channeling of children from the criminal justice system into programmes that make them accountable for their actions.

peer role model

Children who are in conflict with the law and those at risk of coming in conflict with the law may be diverted to some of the following programmes; placement under a supervision and guidance order placing the child under the supervision and guidance of a mentor or peer role model; the issue of compulsory school attendance; the issue of positive peer association; the issue of a good behaviour order requiring a child to abide by an agreement made between the child and his parents to comply with certain standards of behavior; compulsory attendance at a specified centre or place for a specified vocational or educational purpose for a period; restitution of a specified object to a victim; referral to appear at victim -offender mediation or other restorative justice involving family members; referral to a counseling or therapeutic intervention and from  prohibition orders against the child visiting, frequenting or appearing at a specified place

In selecting a specific diversion option for a particular child at a police station or court, consideration should  be given to the child’s cultural, religious and linguistic background;  the child’s educational level, cognitive ability, domestic and environmental circumstances.

In addition, it is important that proportionality of the option recommended or selected to the offence is taken into account in balancing the same with the interests of the society, the child’s age and developmental needs and any other peculiar circumstances relating to the child including whether the child is a repeat offender. Diversion programmes focus on the child and not the offence so as to help the child be accountable and to reform. The goal is rehabilitation of the offender and prevention of further offences by addressing factors that contribute to criminal behaviour. The Diversion Project has been attempted in 14 regions in Kilimani, Kamukunji, Buruburu, Kasarani in Nairobi, Naivasha, Nakuru, Bondeni, Kitale in the Rift Valley, Gucha, Kisii, Siaya, Kisumu, Busia and Kakamega.

amendments

The Law Society of Kenya with assistance of the Canadian Bar Association has been implementing Strengthening Access to Justice for Children project that entails a case management system in the Nairobi Children’s Court, and lobbying for policies on child protection within the juvenile justice system.

What is required urgently are standardised guidelines and procedures for protection of children in the juvenile justice system, and amendments to the Children’s Act to entrench Diversion to shield the child offender from a generally punitive and adversarial criminal justice system. This also ensures that criminal charges are withdrawn and no criminal records iare maintained on children, thus facilitating rehabilitation and reintegration. Article 53 of the Constitution provides that every child has a right not to be detained, except as a measure of last resort, and when detained, to be held for the shortest appropriate period of time; and separate from adults and in conditions that take account of the child’s sex and age. It is frustrating that the proposed amendments to the Children’s Act to entrench Diversion in the juvenile justice system have not borne fruit because of bureaucratic nonsense involving the Department of Children’s Services in the Ministry of Labour, Social Security and Services. 

This has further been compounded by the Cabinet Secretary Ministry of Labour, Social Security and Services who by a legal notice has retrospectively exempted the Child Welfare Society from Restriction on making arrangements for adoption as provided in section 177 of the Children Act. This has not only resulted into holding of children who need care and protection by one adoption Society but created a monopoly bin the adoption process. The parliamentary Committee on delegated legislation ought to scrutinise these kinds of instruments where one purports to exercise powers of delegated legislation especially concerning the vulnerable persons like children.

The writer is Secretary/CEO of the Law Society of Kenya

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