By Ibrahim Alubala

A child in trouble with the law in Kenya has more than their fair share of tragedies. First, a child, whom the law defines as anyone under the age of 18 years, can stand trial while as young as eight. This is the minimum age of criminal responsibility in Kenya.

Secondly, even though the Constitution guarantees the right to a fair trial and access to justice, the law does not expressly provide for mandatory legal representation for children. However, the State gives a free lawyer to an adult who is accused of, say, murder to help them to navigate the criminal system, which is difficult without representation.

Cases that can get children into the criminal justice system include petty theft and sexual offences. Sadly, children connected to the streets or in need of care and protection often find themselves in trouble for begging and loitering.

Thirdly, cases involving children can drag on for a very long time. Before 2006, minor offences involving children would be concluded within six months while those punishable by death — like murder and robbery with violence — would be concluded within a year.

However, all this changed when the Child Offender Rules, contained in the fifth schedule of the Children Act, which set time limits for which trials involving children should be completed, was declared as unconstitutional by the Court of Appeal in the case of Kazungu Kakiwa Mkunzo vs Republic.

For many cases involving children, ‘justice delayed is justice denied.’ The children spend months, or even years, having to make court appearances, missing school and carrying with them a social stigma. In fact, many of them are in remand homes as their cases are going on and they miss out on just being children.

Lastly, our laws do not expressly offer children a chance for diversion. This is the channelling of disputes involving child offenders outside the formal court processes into informal community-based structures, which throws the ball to the community’s court with the message that maintaining law and order is the responsibility of the society.

We need a child-friendly justice system that is sensitive to the issues that children encounter whenever in contact with the judicial system.

First, we need to revise the age of criminal responsibility. According to the Committee on the Rights of the Child, an eight-year-old is too young to stand criminal charges. It recommends that the agelimit be raised. Secodnly, the system should make provisions for legal aid. I have, sadly, witnessed many cases involving children that have been processed through the courts without appropriate legal aid.

Crucially, the Children Bill 2019, which proposes to replace the Children Act, contains elaborate provisions which address all these issues. It seeks to raise the age of criminal responsibility to 12 years, make legal representation for children in conflict with the law mandatory, shield children who commit minor offences from the judicial system and reintroduce timeframes for conclusion of cases involving minors.

The draft law is a magic bullet whose enactment would herald a child-friendly justice system.

This article was first published on the Daily Nation on 28, June 2020