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Part XIII of the Children’s Act details provisions guaranteeing the application of fair trial and due process rights for children accused of committing crimes. These provisions straddle a balance of “protection” on the one hand and “autonomy of the child” on the other. The children’s courts are required to consider a child’s welfare in a manner that a regular court may not be required to do for adults; there is reference to the “best interests of the child.” In addition, the court is obligated to have a setting that is friendly to the child offender. Children accused of crimes are guaranteed a number of rights, including the right to prompt notification of the charges and the right to have the matter determined without undue delay.

Subsidiary rules and regulations made under the Children’s Act provide specific limits within which Kenyan courts should consider criminal cases involving children. Under Kenyan law, there are no corollary rules applicable to adults. According to the UN Committee, the CRC’s provisions restricting the use of detention of children (Article 37) and emphasizing promptness when dealing with alleged child offenders (Article 40(2)) are meant to guard against the practice of keeping children for long periods of time in the justice system—thereby limiting the pedagogical impact of the system and potentially increasing the chances of stigma for the child. Viewed in this light, the time limits made under Kenyan law may be considered to be premised on the understanding that both a prolonged interaction with the formal justice system and detention are harmful for the welfare of children. Hence, detention and delays must be limited.

According to Rule 12 of the Child Offender Rules under Kenya’s Children’s Act:

  • 1. Every case involving a child shall be handled expeditiously and without unnecessary delay.
  • 2. Where the case of a child appearing before a Children’s Court is not completed within 3 months after his plea has been taken the case shall be dismissed and the child shall not be liable to any further proceedings for the same offence.
  • 3. Where, owing to its seriousness, a case is heard by a court superior to the Children’s Court the maximum period of remand for a child shall be 6 months, after which the child shall be released on bail.
  • 4. Where a case to which paragraph (3) of this rule applies is not completed within 12 months after the plea has been taken the case shall be dismissed and the child shall be discharged and shall not be liable to any further proceedings for the same offence.

Rule 10 deals with situations where a child is refused bail. It provides that in instances of pretrial detention, children should be held in specialized or child- specific remand homes. Any pretrial custody shall not exceed 6 months in the case of capital offenses or 3 months in the case of other offenses.

An examination of court practices reveals that Kenyan courts have yet to fully embrace the time limits and the UN Committee’s explanation of the desired pedagogic value of limiting pretrial detention and delayed hearing of cases involving children. In a number of court cases decided in the immediate aftermath of the Children’s Act and decided between 2003 and 2006, the High Court seemed intent to uphold the time limits. A second subsequent set of decisions by the High Court, however, held that the act and the rules should not have the effect of imposing time limits within which to “complete trials” per se but provide a basis for encouraging an expeditious handling of criminal cases involving children. In 2006 the Court of Appeal of Kenya (Kenya’s highest court at the time, and now second highest court) decided in the case Kazungu Mkunzo and another versus Republic to declare that the imposition of time limits for cases involving children was unlawful. The court held that Rules 10(4) and 12 were unconstitutional. It reasoned that the rules purported to set time limits within which to complete the criminal trial of alleged child offenders in a context where Kenya’s Constitution (applicable at the time) and the Children’s Act did not make corresponding express provisions setting time limits for the completion of trials involving children or adults. The Court of Appeal further examined the provision regarding bail (section 72) under the provisions of the old constitution and noted that any person, child or adult, charged with a capital offense was not entitled to a right to bail.

This decision was not surprising in light of the absence of the corresponding provisions under Kenya’s Constitution applicable at the time or the failure by parliament to include the Child Offender Rules as a part of the main body of the Children’s Act (rather than their status as subsidiary legislation promulgated by the minister in charge). However, the court’s failure to engage with Kenya’s obligation to put into effect provisions in compliance with the CRC, which would give effect to the restriction on detention and ensure promptness of criminal procedures involving children, is surprising albeit attributable to a historical reluctance by Kenyan courts in general to engage with international legal norms.

Following the Court of Appeal decision, the status of the rules remains unclear because the government (e.g., minister in charge or the attorney general) has not moved to clarify the status of the Child Offender Rules. Courts have continued to apply the rules, albeit with differing interpretations as to whether they are legally binding or subject to interpretation. Moreover, in many instances where this issue has recently come up (e.g., C.J.W Guardian ad litem for D.W v Republic), the Kenyan High Court did not reference the child rights clause under Kenya’s Constitution, Article 53, which restricts the use of detention for children (as a last resort and for the shortest period of time) in keeping with the provisions of Article 37 of the CRC. In this case, a 16-year-old boy charged with defilement whose case had been pending before the trial court for over 12 months had petitioned the High Court to consider whether the 12-month lapse from the time of plea was in violation of Rule 12(2) of the Child Offender Rules (which requires criminal trials of non-capital offenses to be disposed of within 3 months from the date of the child taking a plea). The Court dismissed the child’s request for a dismissal of the case on the basis of the delay, asserting that the rule in question was instructive rather than mandatory. It discussed that case delays are usually caused by various reasons, including heavy court schedules and requests for adjournments by lawyers defending accused children. Ultimately, a judicial or administrative review is required to harmonize the Children’s Act and the Child Offender Rules made under it in light of the implications of the child rights clause under Kenya’s Constitution which expressly limit detention, including pretrial detention, as last resort and for the shortest period of time.

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