Kenya is currently at crossroads with regard to unprecedented incidents of arson attacks in schools. A number of schools have been torched in what seems to follow near similar patterns. While some juveniles involved in these acts have been arraigned in courts, the Constitution and relevant laws do not provide for punishment but rehabilitation of such children since they cannot be convicted.
In retrospect, traditional structures were organised in a way that facilitated communal “ownership“ and supervision of the delinquent child. This was not confined to the nuclear family; it was a task undertaken by the community. The colonial period disrupted this setup. While traditional child rearing practices were for the common good and practised in the community, with elders providing oral learning, the English juvenile justice was more institutional, discriminatory and combined welfare service with punishment. Deprived children were lumped together with delinquents. It was administered through regimented structures backed by an alien legal mandate. These were epitomised in what is currently known as rehabilitation schools, borstal schools and youth corrective training centres. Children taken in were collectively deemed as vagabonds, truants, beggars and petty pilferers and such acts were perceived as “transgression“ deserving incarceration as a protective measure for the “white settler“ with least consideration of the interest of the “errant“ child.
The current phase of juvenile justice system coincided with the clamour for political pluralism in Kenya. Then, children were neglected perhaps due to economic meltdown, and in hordes they arrived in the cities especially Nairobi, Nakuru, Kisumu and Mombasa. The biggest challenge became the welfare needs of these children and not the criminal element. Rights issues gained momentum which later culminated in the enactment of the current Children Act No 8 of 2001. The Act erased the word “juvenile“ from the criminology vocabulary of delinquency treatment in Kenya ostensibly because it was colonial and thus retrogressive. It also did away with the delineation of children in terms of understanding who a child is, who a juvenile is and who a young person is, and in place came a universal definition of a child as being any person below the age of 18. Arguably the Act put the same scale of understanding, that a 17-year old juvenile rapist and an eight year old pilferer should be processed, treated and cared for in the same manner. This perhaps brings us to ponder whether Kenya indeed adheres to any justice model or if at all the system is alive to these models. The Children Act is a concoction and confusion of welfare and criminal matters. It espouses neither a welfare model nor a justice model. It confuses child themes in an attempt to create a hybrid model, making it difficult for agencies to collaborate effectively in its implementation. The major preoccupation of the courts is conformity to due process as opposed to assessing criminogenic needs followed with providing appropriate interventions to deal with changing risk factors.
Whereas there is clamour and agitation for firm action on children who will be found guilty of arson attacks, it would be difficult to subject them to what some people may want to see as punishment. International best practices discourage practitioners (including judicial officers and probation officers) from employing custodial measures as a first measure for first offenders but such action may only be taken as a last resort and for the shortest time possible. The unfortunate occurrence of the serious offences committed by the juveniles is perhaps an awakening call for the State and practitioners to reconsider the due processing of child offenders. It is time that a comprehensive juvenile justice Act was enacted to cater for children in conflict with the law and which is not adversarial.
The considered appropriate model for the juvenile justice in Kenya is that which will appreciate the developmental characteristics of a child; give room for professional social workers (and not philanthropists), psychologists and criminologists to lead the group of those helping the problem child. There is need to acknowledge that a child in need of welfare support (food, clothing, and shelter health care) must not be institutionalised and mixed with the delinquent juvenile. The law must, in equal measure, hold the State and the parents accountable for the delinquent circumstances of the child. In the absence of these, we shall continue waffling with what to do with children who deserve appropriate action.
The writer is an assistant director of Probations, Prisons Department