New law: No more jail term and remand for child offenders

Minors in conflict with the law will now be corrected by the community and not hauled to courts and subsequently held in borstal institutions.

In a raft of sweeping changes introduced in the Children Act, 2021, children who end up in court for minor offences such as theft and arson will be corrected through diversion.

Diversion will ensure a child will understand they have done something wrong, hence their rehabilitation.

The law has also increased the criminal responsibility for a child from eight years to 12.

The law has three levels of dealing with a minor. At the first level, a child who has committed a minor offence will be required, for example, to write an apology letter, say sorry and do something as a way of acknowledging that they are wrong.

At the second level, the child will be supervised in an institution; for example, they will be required to spend a specific number of hours not exceeding five hours with his or her family, go to a library or a school, church, or mosque for a period of three months in close watch of a probation officer. They will be also required to pay a compensation of up to Sh5,000 to a specified person, group or institution and specified amount to the victim or victims.

The third level, which will be for extreme cases, will have them put under community service order or end up in a rehabilitation centre for a period not exceeding one year.

However, this will only apply to an instance where there is proof that the child committed an offence, which is not a capital offence, and they admit responsibility.

Parents or guardians will be required to consent to diversion, but the victim’s say will also be considered.

Words such as conviction and sentence will not be used in a trial of a minor and the court will not order for imprisonment.

The repealed Children Act had children tried before a magistrate’s court and jailed for a maximum of three years.

“Institutionalisation and detention of children in conflict with the law, 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,” the Act reads.

Former Chief Justice Willy Mutunga, when he was still in office, formed a 17-member taskforce, led by the current Chief Justice Martha Koome, to review the law on children, identify challenges and make appropriate recommendations.

Justice Koome has praised the new law, saying it is a win for Kenyan children. She said Kenya has a new and better environment to raise children.

“We have a better environment to raise children. We will now focus on implementation. The task force is now being headed by High Court judge Teresiah Matheka,” said Justice Koome.

According to the new law, there will be no words like conviction or sentence in a children’s court. The age at 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 have known right or wrong if they are under 14 years.

In the former law, it was assumed that a child under 12 years does not know right or wrong.

According the new Act, there will be compensation for those wronged and this will involve parents and the community.

The Act envisions family-based alternative care for children against the law. They will be placed under care of another family where he or she can learn and be corrected.

At the same time, 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 at Level One of diversion will be ordering the child not to appear in specified places, counselling, an order for good behaviour for a period of three months and placement under supervision and guidance for a period of three months.

Level Two of diversion, which will last not more than six months, will have a child attend a specified centre for vocational or educational purpose for a period not exceeding five hours each week. They will be supervised for a period of six months.

In this level, a child will be required to carry out community service and there may be compensation to the harmed victims.

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 to discuss the offence and its repercussions.

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

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

In addition, they will compulsorily attend a specific centre or place for vocational or educational purpose.

A magistrate will do a preliminary inquiry to determine the best option to deal with the minor. At the same time, the Office of Director of Public Prosecutions will be required to review cases with an aim of diversion instead of charging a minor.

If a child is between 12 and 15 years, he or she will be sent to a rehabilitation institution focused on his or her needs. There will be compensation or a fine but this will be in consideration of a parent’s means.

Only those aged above 16 years will be dealt with in accordance with borstal institutions law but as a last option.

A scrutiny of those in children remands by the taskforce revealed that only four per cent of them were children in conflict with the law.

Some of the minors languishing in the institutions did minor offences like failing to go to school or just general truancy.

It emerged that children who had been harmed are bundled together with those who are against the law.

A case will take at least a year to be heard during which the offenders and the victims are losing out on their education, among other things.

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

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

Kenya’s biggest headache when it comes to children is neglect, which contributes to 58.7 per cent of the cases reported.

The Act provides for child protection structures, which includes care facilities, rescue centres and recreational facilities, which will be built by the counties.

The law 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.

In the Act, a radicalised child is seen as one in need of care and protection and not as a child against the law.

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

Under the repealed Act, a man assumes child responsibility by going to court. However, the new law gives an automatic parental responsibility to both the man and woman.