After several rounds of consultations and meetings with key local and international actors in the field of children’s rights, the Oslo Center has decided to focus more closely on the juvenile justice sector in Kenya. This is a term that comprises children both in conflict and contact with the law. Many children come into contact with the law without having committed a criminal act. For instance, street children are often arbitrarily deprived of their liberty solely because they are children living on the streets.
The main principles pertaining to juvenile justice are to be found in the Convention on the Rights of the Child 1989 (“CRC”). The best interest of the child shall be a primary consideration in all matters concerning the child. States must thus take a coherent approach to juvenile justice issues, with the best of interest of the child as a guiding principle.
According to article 37, children have the right to a fair trial. The arrest, detention or imprisonment of a child shall be a measure of last resort, and for the shortest period of time. Moreover, children shall not be imprisoned with adults.
Any form of deprivation of liberty will have a negative impact on the harmonious development of the child. Thus, in article 40 it is stated that any child accused of, or recognized as having infringed the penal law must be treated with respect, and in a manner that enables the child to be reintegrated into his or her family and the wider community. According to article 40 (3) (a), States have a responsibility to establish a minimum age of criminal responsibility. The CRC does not specify what this age should be, however the UN Committee on the Rights of the Child has recommended that the minimum age of criminal responsibility should not be set below the age of 12 years.
Article 53 of Kenya’s constitution from 2010 reflects the most important principles found in the CRC pertaining to juvenile justice. Kenya is in the process of harmonizing the Children Act 2001 and other domestic legislation with this provision in order to further strengthen the rights of children. By taking these steps, Kenya clearly demonstrates it takes children and their rights seriously.
Despite these positive changes much still remains in the field of juvenile justice. For instance, implementing existing legislation and the reform processes take time. Moreover, it is evident that the run up to the elections taking place March 4th next year have started. This will affect what can be and currently is being done on juvenile justice issues. Furthermore, coordinating key actors working on projects related to children in conflict with the law, such as training police officers, judges and prison officers, is often done ad hoc and not under the auspices of a central, coordinating government body.
It is because of these challenges that the Oslo Center has decided to focus its work on those children who have come into contact with the juvenile justice system in Kenya.