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Article 260 of the Kenyan Constitution and section 2 of the Children’s Act, drawing from the CRC’s and the African Children’s Charter’s definitions of children, provide that a “child” is any person under the age of 18 years. This definition is an advancement in Kenyan law. Although the law is now explicitly clear in the definition of children, there are still issues about conceptions of childhood including societal and cultural frames (e.g., marriage) to defining who a child is. In the juvenile justice sphere, however, there is no doubt as to the age of majority under Kenyan law in light of the definition in the constitution and the Act that envisages that any persons below the age of 18 should, when accused of crimes, be subjected to separate child-specific procedures and processes. The CRC and the African Children’s Charter do not explicitly specify an age below which children are deemed not to have capacity to commit crime or be deemed to bear responsibility for criminal conduct (i.e., a minimum age of criminal capacity or responsibility). The UN Committee on the Rights of the Child, the body charged with monitoring implementation of the CRC, has recommended that State Parties should, at the very minimum, set this age at 12. The Kenyan Children’s Act leaves this question to an old legal order—the general penal code—in which the minimum age of criminal capacity is set at 8 years. Children between the ages of 8 and 12 years are legally presumed to lack criminal capacity unless the prosecution provides evidence to prove (or rebut) this presumption. However, the code appears to enact a minimum age of capacity of 12 years for boys in the case of sexual offenses. The UN Committee has twice been unequivocal that these provisions fail to meet the CRC standards. It has urged Kenya to increase the minimum age of criminal responsibility from 8 to “at least the age of 12 years, and consider increasing it” (UN Committee on the Rights of the Child 2007).

A review of the Law Reform Commission’s report that led to the enactment of the Children’s Act reveals that the commission did not consider the issue of minimum age as a distinct stand-alone legal obligation subject under the CRC. While expressing support for the retention of the current minimum age of 8 years (with a presumption against capacity for children between the ages of 8 and 12 years), the commission appeared to downplay the need to increase the minimum age. Rather, the commission sought to emphasize the need for distinct (exclusive) juvenile courts and procedures for children in direct response to the issue of a low age of criminal responsibility (Kenya Law Reform Commission 1993). With the benefit of hindsight, this position appears contrarian to that of the UN Committee. In 2007, during an examination of the country’s record by the UN Committee, the Kenyan government expressed a commitment that it would embark on a review of this issue. As of the time of writing, such a review remains pending. In the absence of detailed disaggregated statistics on children arrested and charged with crimes (including with reference to age), the extent to which very young children are caught up in the criminal justice system because of the low minimum age of criminal responsibility is not fully clear.

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