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COURTS AND JUVENILES
The emphasis on separate courts and procedures for children is central to the provisions of the CRC, the African Children’s Charter, and Kenya’s Children’s Act. Kenya’s previous children’s law (section 3(1) of the Children and Young Persons Act in 1969) provided for the jurisdiction of “juvenile courts” to try children accused of crimes (with the exception of when they were tried with adults) in addition to civil jurisdiction over care and protection, adoption, maintenance, and other issues. Under the Children’s Act of 2001, the provision requiring specialized courts and procedures has not only been maintained but also enhanced. Part VI of the act provides for the establishment of children’s courts. In relation to criminal matters concerning children, these courts are exclusively vested with jurisdiction to try children for all and any criminal offenses—serious or otherwise—except where children are charged with murder and where they are jointly accused of committing crimes with adult(s). Under section 76, the act requires that any court order or decision regarding children should take into account “the ascertainable feelings and wishes of the child concerned with reference to the child’s age and understanding.”
Because of inadequate public allocation and spending in the criminal justice system in general and the juvenile justice system in particular, the law’s requirement for separate courts and procedures remains elusive in practice. Officials and courts have often defaulted to conducting and hearing cases involving children in open regular courts (Human Rights Watch 1997). In its 2007 review, the UN Committee expressed its concern regarding the continuing lack of separate courts and procedures:
.. .in certain instances children are treated as adults and... only limited progress has been achieved in establishing a functioning juvenile justice system outside the capital..
When reporting to the UN Committee in 2006, the government stated that the number of children tried and sentenced as adults has gradually been decreasing (from 626 in 2003 to 180 in 2006). It attributed this decrease to the implementation of the Children’s Act and increased awareness of children’s rights.
On the one hand, the failure to establish full-fledged children’s courts and separate procedures may be attributed to a question of availability and/or the allocation of public resources to support the operationalization of the Children’s Act. On the other hand, this failure reveals a tension inherent in the attempt of Kenya’s legal framework to live up to the ideals of a purely rights-based oriented juvenile justice system that is subject to competing goals or ideals.
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