New law to abolish jail terms for children

Task force proposes radical changes on how to handle delinquent juveniles

The Judiciary has proposed several changes to the current children law.

Among the proposed changes  is raising of the age at which a child is held liable for a crime, assumed to know right or wrong and a three step disciplinary procedure for arrant children.

Calculated to protect the welfare of children, the changes also recommend that errant children are corrected by the community and not hauled into courts and subsequently held in juvenile delinquent centres.

The proposals contained in a draft dubbed Children Act 2019  are conceptualised to change ways of rehabilitating errant children while ensuring they understand where they have gone wrong.

Under the proposals, there will be three levels of dealing with children. In the first instance, a child who has committed a minor offence will be required to write an apology letter and do something to make up for their wrong.

In the second level, the child will be supervised in an institution. For example, they will be required to spend specific number of hours with their family, go to a library or a school, church or mosque for a period of three months under the close watch of a probation officer.

Extreme cases

For extreme cases, errant children will do community service or end up in a rehabilitation center, for a period not exceeding a year.

Under the current Children’s Act, errant children can be tried before a magistrate’s court and be jailed for a maximum of three years.

“Institutionalisation and detention of children pending trial shall be used as a means of last resort, and detention pending trial shall as far as practicable be replaced by alternative measures, such as placement with a family or in an educational setting or home,” states the Bill.

Former Chief Justice Willy Mutunga formed a 17-member taskforce led by Court of Appeal Judge Martha Koome to review among other things the law on children, identify challenges and make appropriate recommendations.

Justice Koome told The Standard that the bill was good for the country's children.

“There a lot of good changes for our children in the new law,” said Justice Koome.

Once made in made into law, words like conviction or sentence will be done away with in a children’s court.

 According to the bill, the age of which the child can be held liable for a criminal offence is 12 years, up from the current eight years.

 In addition, a child will be assumed not to know right or wrong if they are under 14 years.

The current regime it is assumed that a child under 12 years does not know right or wrong.

Under the Bill currently with the Labour ministry, there will be compensation for those wronged and this will involve child's parents and the community.

Compensation process

The compensation process will involve service, money or even objects.

 “It is symbolic restitution. The proposed bill, however, does not allow or pave way for child labour,” Juliet Nyambura, a member of the taskforce told The Standard.

“The concept is more of a restorative justice than the punitive one. It will focus on the needs of the victims and the offenders, as well as the involved community. Victims will take an active role in the process, while offenders are encouraged to take responsibility for their actions.”

The proposed law envisions family-based alternative care for errant children where they can learn and be corrected.

At the same time, a there will be family orders in which a child in conflict with the law will be required to spend a specific number of hours with his or her family. This will not exceed a period of three months.

The child will also be cautioned.

Some of the interventions include ordering errant child not to appear in specified places, counseling, an order for good behaviour for a period of three months and placement under supervision and guidance for a period of three months.

Second level

The second level of diversion, which will last for not more than six months will have a child attend a specified center or place for a specified vocational or educational purpose for a period not exceeding eight hours each week. They will be supervised for a period six months.

At this level, a child will be required to carry out community service.

A child who has been committed to the second level diversion will be required to appear at a family group conference which for example will have another family, a child officer, a police officer, probation officer, a member of the community and victims with his or her parents who will discuss the offence and its repercussions with the offender.

Parents, guardians or any person who is exercising parental responsibility over the child law will be required to attend the family group conference.

The third level of diversion will run for at least a year. In this level, a child will be required to do an unpaid community service for days not exceeding 35 days in total and 21 consecutive days during the operation of the programme.

In addition, they will be bound to attend a specific center or place for vocation or education purposes.

The bill proposes that a magistrate will do a preliminary inquiry to determine which will be the best option to deal with the child. At the same time, the Office of Director of Public Prosecution will be required to review cases with an aim of diversion instead of charging children.

A scrutiny of children in remand by the taskforce revealed that only 4 per cent of those held were in conflict with the law.

Some of the children languishing in the institutions committed such as offences as failing to go to school or general truancy.

It emerged that children who had been harmed are bundled together with those who are against the law. A case can take at least a year to be heard during which time the offenders lose out on education.

Data obtained by from Directorate of Children Services indicate that top 10 of cases involving children include defilement which contributes to 1.3 per cent of the cases, parental child abduction, (1.4 per cent) physical abuse and violence against a child (1.6 percent).

Child truancy contributes to 1.9 per cent of the cases, orphaned children (3.4 percent), abandoned, (3.8 percent) and child custody (16.6 percent).

Protection structures

The new law envisions protection structures which include care facilities, child protection, rescue centers and recreational facilities which will be built by the counties.

The bill also defines an intersex child and incorporates child cyber safety which are not in the children law.

It is proposed that the State will be responsible for protecting the child from sex predators.

It also introduces a requirement for courts to make a child protection order for a radicalised child or one who was in the process of being radicalised.

On parental responsibility, the bill spells out that in the event a child is born out of wedlock, both parents will have parental responsibility at the first instance.

It gives automatic parental responsibility to both the man and woman.