Differing perspectives have surfaced between the Judiciary and the Office of the Director of Public Prosecution (ODPP) concerning a provision in the Children's Act of 2022 that permits cases involving minors accused of offenses to be referred to out-of-court settlements.
During a public participation forum for the enactment of rules governing cases of Children in Conflict with the Law, held on Monday, August 14, the Judiciary and ODPP found themselves at odds.
Chief Justice Martha Koome initiated the public participation in Nakuru to establish regulations for cases involving children, encompassing adoption, foster care, and guardianship. Similar efforts have been carried out in Eldoret, Nyeri, Bungoma, Meru, Kisumu, Embu, and Mombasa, with upcoming sessions scheduled for Kericho and Malindi this month.
A specific rule pertaining to subjects grants the court complete discretion in determining whether a case can be referred to an out-of-court settlement (diversion) without involving the ODPP. This rule outlines that the court must consider factors such as the subject's age, development needs, family background, as well as social, cultural, religious, and linguistic aspects when opting for diversion.
During the public participation, Prosecutor Angeline Chinga voiced the opinion that the court should consider a report from the ODPP before opting for out-of-court settlements. Chinga emphasized that ODPP's assessment should guide the court's decision-making process to determine the best resolution for the cases.
Chinga maintained that the ODPP's perspective should be respected, and if it determines that a subject's case should proceed to its conclusion in court, that decision should be final.
However, Principal Magistrate Jackie Kibosia from the Children’s Court in Milimani countered that ODPP's stance might encroach upon the court's authority to decide cases. Kibosia asserted that while ODPP handles prosecutions, the court's primary concern is the welfare of the children involved.
Kibosia underscored that the court possesses the authority to discharge subjects when evidence is insufficient. She questioned the shift in ODPP's position, noting that the office had not previously objected to the court discharging subjects.
Additionally, the ODPP raised concerns about the court adjourning cases for further investigations. Chinga suggested that once a subject is charged, it implies that the police, under the purview of the ODPP, have completed investigations.
However, the court defended its approach by highlighting that, unlike adult suspects, cases involving minors might uncover additional matters that require further investigation.
Judge Kossy Bor, who chaired the public participation session, emphasized that parties handling cases involving children must prioritize the welfare of the child above all else.
Duncan Gitonga, a children's officer, expressed concern that although the Children Act stipulates that cases involving subjects should conclude within three months, some cases persist for years. He stressed that extended stays in juvenile facilities due to minor offenses are not in the best interest of the children.
Acknowledging these concerns, Judge Bor acknowledged the need to address the issue. She encouraged Gitonga and others to raise such concerns within the courts, promoting an open dialogue for resolution.
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