Exposing children to justice system destroys their future

A school girl bullies another girl in a secluded passageway outside a school building.[Getty Images]

Problems experienced in childhood or adolescence can have life?long implications. When younger children encounter the justice system, the more likely they are to have sustained contact. An overwhelming majority of children who have come into conflict with the law are victims of neglect, exploitation, and social, psychological and economic hardships. These children need and have a right to proper care, guidance, protection and opportunity for social reintegration; all of which need to comprise the rehabilitative role of the juvenile justice system.

Juvenile justice, as opposed to criminal justice, recognises children who come into conflict with the law as victims. Currently, the age of criminal responsibility is eight (8) years, according to the Kenyan Penal Code Act 63. While this is a young age, the court must conclude that the child at the time of committing the crime understood that what they were doing was against the law. If they were unaware, then they cannot be sued and eventually held responsible. This rule is limited to children above eight years but below 12 years old.

Kenya’s current age of criminal responsibility is too low - actually, among the lowest in Africa - and should be increased to 12 years. The current age of 8 goes against the letter and spirit of child rights and provides an escape route for adult offenders to abuse and coerce children to commit crimes.

Kenya is a signatory to the United Nations Convention on the Rights of the Child (UNCRC), which is a commitment to doing everything possible to ensure children grow up within a protective and secure environment. Sadly, the current age of criminal responsibility is by itself an act of violence against children.

Children in conflict with the law are already victims of circumstances, owing to poor upbringing, poverty and exploitation by adult crime syndicates. What these children need is protection through provision of an enabling environment for wholesome growth and development and not further victimisation and punitive ‘justice’. They essentially need a second chance at life to reform and rehabilitate.

Science shows that brain function reaches maturity at around the age of 16. Proponents of the status quo argue that children as young as eight are cognitively mature and capable of discernment, hence able to consciously engage in crime. This contradicts other legislation which puts the legal age to enter marriage, legal contracts and employment in the Kenya at 18. An eight-year-old child has not yet even reached the age of puberty and their brain is not developed enough to understand the consequences of actions. UNICEF notes that once arrested, children in Kenya enter the revolving doors of the juvenile justice system and begin a path that takes them from police lock-up, to court, from court to remand detention centres where they may circulate back and forth for months or even years before finally receiving disposition of their cases. For this reason, many children end up pleading guilty to their charges simply to avoid spending time in detention centres where conditions are known to be harsh.

Regrettably, there is no mechanism to protect these children from cohabiting with hardened and sometimes violent criminals while in custody. Detaining children will not teach them accountability for their actions, if anything, it exposes them to the criminal world and hardens them.

At ChildFund, we hold that branding children as criminals removes accountability from adults who are responsible for safeguarding them.

Children should not be held criminally responsible when they do not have the maturity to engage in the judicial proceedings or the ability to properly understand the criminal nature of their behaviour. If we fail to understand the underlying reasons of how and why our children commit crimes then, as adults, we fail our children.