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PRETRIAL DIVERSION

Kenya’s legal framework, including the Children’s Act, is silent on the extent of the applicability of pre- and on-trial diversion programs. The act does not explicitly recognize the possibility of a formal referral of children away from criminal justice processes before trial. In the period since 2001, the government has implemented a “pilot diversion” program with support from some of the development partners. The main aim of the project, which has involved the police since 2005, is to assist in the removal of children who have not committed criminal offenses from the juvenile justice administration into community-based alternatives. Its overall aim is to filter social welfare and child care and protection cases out of Kenya’s criminal (juvenile) justice system.

Kenya’s criminal procedural law provides the Director of Public Prosecutions with wide powers of discretion over any criminal charges against any person: children or adult at any stage of a criminal trial process (before or during trial). This may be interpreted to provide some room for the state or the prosecution to conduct pretrial diversion of children accused of crimes. To date, however, there is little or no evidence that Kenyan prosecutors view their authority to include pretrial diversion processes. This is largely attributable to the lack of direct statutory provisions and the reality that pretrial diversions of any kind are generally alien to Kenya’s general criminal justice system. Hence, the pilot diversion project has had some success in aiding the process of removing children who may be caught in the formal justice system but have not committed any crimes.

 
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