Republic of Kenya

JUVENILE JUSTICE IN KENYA AND THE
MANAGEMENT OF CHILDREN INVOLVED
VIOLENT CRIMES:A Public Lecture Held at the Ministry ofJustice, Headquarters, Tokyo-Japan-27thJanuary 2023
By Clement Okech, OGW.
Deputy Director, Probation and Aftercare Service,Kenya

1

Session• Understanding applicable terminologies andDelinquency• Philosophies and models of juvenile/child justicesystems• The penal System and the child justice laws
• Responses to juvenile/child crime• Strategies for reducing offending• Challenges

2Introduction• Juvenile VS Child (justice):same coindifferent sides? / Lexical Semantics or Realdifference?
• Developmental definition• Legal Definition• Jurisdictional perspective• Child, Juvenile as contrasted with youth• Implication for juvenile justice system
3

A Child in conflict with the law• A child in conflict with the law is a child, who is inviolation of the law as a suspect, accused or foundguilty of having committed a criminal offence.
• The question of age of criminal liability arises and isvariedly applied.
• In Kenya, a child is criminally liable if the childcommits an offence at the age of 12 years• Children are investigated and indicted in the same
way as adults

4Juvenile justice system• Juvenile justice system can be defined as the formal
responsive arrangement by government to process
and deal with a child in conflict with the law inaccordance with the prescribed set of laws while
taking cognizance of the child’s rights and bestinterest• It is a systematic structural procedure of government
agencies that are dependent upon each other yet
operating distinctly in the maintenance of law andorder, and exercising social control through arrest,
prosecution, trial and adjudication, and punishment
or correctional rehabilitation
5

Juvenile Justice System- Cont’d• POLICE=Arrest/apprehension (may grant Bail orBond)=Children officers involved• PROSECUTION=arraignment and adducing evidence• COURT= Bail Decision-Making (may call for Bailinformation reports). Bond or Remand custody• =Hearing/Adjudication• =Disposal• CORRECTIONAL INSTITUTIONS= training &rehabilitation• PROBATION=Post release supervision and aftercare
6Delinquency• Delinquency is mostly understood from theperspective of law violation in which a child ofcriminal age commits a proscribed act.
• Delinquency is thus a deviant behaviour that may
manifest any time before maturity and sometimes
may extend into adulthood.
• The physiological and emotional difficulties orpressures may lead a child to engage
disproportionately in anti-social conduct

7

Childhood, Delinquency and Risk
Domains• Children undergo myriad experiences during
upbringing which may result in conflicts for theadolescent• Development of delinquent tendencies can beapportioned to the (1) individual (capacities to cope)and his or her (2) interaction with the environment• Five Developmental Risk domains(1)individual, (2) family, (3) peer group, (4) school and(5) the community (POVERTY Is but a predisposing
factor Not a Cause)• However, data indicate a correlation between
poverty/survival and delinquency
8

Philosophy and JJ models• Research tells us that, for the majority of youth
who commit offences, the behaviour will desist inlate adolescence or early adulthood,• Only about 8 to 10% of boys who are offenders as
youth continue to offend increasingly intoadulthood.
• Thus, findings of high risk during adolescence are
weak predictors of long-range offending Farrington,(2007)
and Loeber, R., et al. (2002)

9

Philosophical Principles
1. Diminished capacity/responsibility=extent to which ajuvenile has the capacity to bear blameworthiness or
culpability for the offence
2. Proportionality = despite capacity to makejudgement, a child cannot be required to take fullaccountability and thus should not be subject to apunishment that would have been meted out to an
adult in similar circumstance3. Opportunity for reformation=adolescence and youth
in general are at transitory stages in life that requiresafeguards and room to navigate through into
adulthood. (Howell 2009)10

1. Parens Patriae Doctrine• Anchored on the doctrine of parens patriae- thestate has the responsibility for the well being of thechild• Principal objective is to restore functioning of thechild• Sanctioning and punishment should play a little role
• Responses draw on medical, psych-social
approaches

11Models of Juvenile Justice system• Juvenile Justice system in Kenya has bothadversarial and inquisitorial components.
• Five broad models of juvenile justice have beenidentified by Corrado (1992) as being
1. Welfare model,
2. Corporatist model
3. Justice model
4. Modified Justice Model
5. Crime Control model.
12

Emergence of Penal System inKenya• The Modern Penal System was introduced by theBritish Government• There existed good practices not oriented topunishment including reconciliation, restitution,compensation by the individual or community, socialexclusion and public ridicule, religious sanctions
including curse, etc ( James S. Read, 1966 cited in
Kercher 1981).

13

Emergence of Penal Institutions
for Young Offenders• English Penal legislation which was strong on
institutionalization and perceived to:
1. Reduce the likelihood of contamination in adultprisons
2. Prevent the hardening of attitudes against society andauthority
3. Avoid labelling of the young offender
4. Provide special programmes for resocialization

14

Emergence of Penal Institutions for
Young Offenders: Penal Institutions
1. Remand Homes, ( first established in 1960)
2. Approved Schools,(first established in 1937 &1943)
3. Borstal Institutions (first established in 1963)
4. Youth Corrective Training Centre (established in1962) for young offenders falling between 17 &19 years.
5. ‘Probation hostels’ (first established in1957)–
classified as correctional institution but are open
facilities for probationers only15

Juvenile Correctional Programmes• Formal Education• Vocational training- (Mainly Carpentry,& Tailoring &Masonry),• Agriculture• Case work, Counselling and other behaviouralprogrammes• Life skills training

16

Establishment of BorstalInstitutions• Borstal Institution was established as a penal
facility for serious offenders managed by Kenya
Prison Service• First constructed in Kenya in 1963 to admit boys
aged between 15 and 17• Admission to Borstal Institution was and still is, up
to three years• Three BIs in Kenya, one for girls started in 201617

BI Offence TypeCATEGORYOFFENCE

2013%

2014%

2015%

Total

I

Offences against Order &administration of lawful authority

28

5.1%

24

5.0%

22

6.75%

74

III

Offences injurious to the public ingeneralOffences against the person

34

6.2%

33

6.85%

53

16.26%

120

88

16.1%

70

14.5%

27

8.28%

185

382

69.7%

321

66.6%

212

65.03%

915

10.18%

10.21%

20.61%

4

10.18%

10.21%

10.31%

3

142.55%30

6.22%

61.84%

500020.41%

30.92%5III
IVVVI
VIIVIII

Offences relating to property
Forgery, conning, counterfeiting
Attempts and conspiracy to commit
crimesOffences under narcotic Acts
Others

548

482

326

1356

18

Youth Corrective Training Centre• Youth Corrective Training Centre was established in
1962 for teenage offenders who were deemed to be
unruly and needing ‘short-sharp-shock’ treatment• Detached from the family as deterrent and acorrective measure.
• Youth admitted to the centre must be aged between
17-21 years for duration of four months• YCTC deemed as Prison and inmates as prisoners• Capacity of 100 inmates currently 55
19

YCTC Cont’d• YCTC meant for first time offenders requiring close
regimented supervision• Committal is through the court and the advice of aprobation officer.
• Due to the relative short time that they boys stay inthis facility, there are no vocational training but little
farming, rigorous outdoor chores.
• No post penal supervision

20THE JUVENILE JUSTICE PROCESS• Agencies involved include Police, Prosecution,Judiciary, Probation, Prison and Children’s Dept• Children are often arrested for committing offences
and processed in near similar way as adultoffenders• The Police or any authorised officer may apprehenda child for due processing• Police must separate boys from girls despite having
only 14 Child protection units
21

Children Arrested 2013-2015
Regions
1

EASTERN REGION

2CENTRAL REGION

3WESTERN REGION

4NAIROBI REGION

5

RIFT VALLEY REGION

6COAST REGION

7NYANZA REGION

8NORTH EASTERN
TOTAL

Number of Children ArrestedTotal20132014

2015

301

288309

898

183

269

250702117

1822095081397062271334

346

427

1107

170

221

167

558

324

350

334

1008

22

26

47

95

1,590

1,752

1,805

22
5,147

Juvenile Justice in Kenya• While the Kenya Criminal Justice System isadversarial, the Juvenile justice system is notstrictly adversarial.
• It appears to be a mix of the models thatembracing various juvenile justice models.
• The underlying principle is the best interests of thechild nevertheless• Procedures in court, and with all the other agencies
in the criminal justice system are conducted in an
informal manner and child friendly environment• Magistrates presiding over a children’s court aregazetted by the Chief Justice.

23

Constitutional Provisions Relating To Children• Bill of Rights in the Constitution (2010)
incorporates child rights and child justice issues as
special category• right to freedom from torture and cruel, inhumaneor degrading punishment or treatment• Freedom from slavery or servitude, -no forced
labour,• the right to a fair trial,• Right not to be deprived of freedom and security,
not to be subjected to corporal punishment or tobe treated in cruel degrading manner24Child Rights (Art. 53(1&2)• Right to free and compulsory basic education,• Basic nutrition, shelter & health care,• Protection from abuse, neglect, violence,• Inhumane treatment or punishment,• Not to be detained, except as a measure of lastresort and when detained, to be held for the
shortest appropriate period of time and, separate
from adults in conditions that take account of thechild’s sex and age.
(i) Article 53 (2), states that a child’s best interests
are of paramount importance in every matter
concerning the child.
25

Children's Act No. 29 of 20122• The Children Act is the embodiment of child rights,protection and welfare legislation.
• The Act entrusts various bodies powers to securechildren right and for provision of welfare needs andrehabilitation services.
• Part XV of the Act specifically deals with processingof children in court and the roles of various actors
including probation officers with regard to provisionof various social inquiry assessment reports fordecision-making• Children’s Court may try a child for any offence except
the offence of murder
26

Criminal liability of a Child• Section 221(1) A person under the age of twelve years

shall not be criminally responsible for any act oromission.
• (2) A child who commits an offence while under the ageof fourteen years shall be presumed not to be capableof differentiating between right and wrong, unless theCourt is satisfied on evidence to the contrary.
• (3) The provisions of this Part shall apply to a person
who reaches the age of eighteen years before
proceedings instituted against them have beenconcluded.
27

Diversion• Section 226: Diversion is available as an alternative
methods of holding children accountable• Intended to promote the rehabilitation and reintegration of the child• promote reconciliation between the child and theperson or community affected by the harmful
conduct of the child and• Helps to minimize stigmatization of the child, andprevent a consequences of criminal justice process.
• DIVERSION NOT AVAILABLE IN MURDER CASES
28

Restriction on punishment• Section 238: A child offender cannot:a) Be ordered to imprisonment
Notwithstanding the nature of any offenceb) Be ordered to suffer death penaltyc) Be committed to rehabilitation school ifbelow 12 years of age.
• A child may be ordered to serve community
service29

Methods of dealing with children in conflictwith the law.
• Section 239.
• (a) discharge the child under section 35(1) of thePenal Code;• (b) discharge the child on his or her entering into a
recognisance, with or without sureties;• (c) make a probation order against the offender• (d) commit the offender to the care of a fit person,• (e) if the child is between twelve years and fifteen
years of age, order that the child be sent to arehabilitation institution
30

Methods of dealing with children in conflictwith the law Cont’d…..
• f) order the child to pay a fine, compensation orcosts, (liability on child’s parents or guardian)• (g) in the case of a child who has attained theage of sixteen years, commit to a BorstalInstitutions;• (h) place the child under the care of a qualified
counsellor or psychologist;• (i) order that the child be placed in an
educational institution or vocational training
programme;
31

Methods of dealing with children in conflictwith the law Cont’d…..
• (j) order that the child be placed in aprobation hostel• (k) make a community service order;• (l) make a restorative justice order;• (m)make a supervision order• n) make a diversion order• (o) deal with the child in any other lawfulmanner32

Assessment of Risk factors• Juvenile delinquency is an integral part ofpreventing a young person from involvement ininappropriate, harmful and illegal conduct.
• Four primary risk factors can identify young people
inclined to delinquent activities:• (1) individual,• (2)family,• (3) Mental health and• (4)Drug & substance abuse (including Cannabis).
33Classification of child offenders
Child offenders are classified according to
1. the severity of the offences committed &the frequency of offending
2. Misdemeanour offender-infrequent lawviolation
3. Criminal or violent offenders• Although offence typology are important inclassification of child offenders, the mostideal is through ASSESSMENT OF RISKFACTORS34

RESPONDING TO VIOLENT SERIOUS CRIME• There is no different set of risk factors associatedwith serious violent offending. Similarities withother problem behaviour in various risk domains
exist for child offenders, (Lipsey and Derzon ,1998,Esbesen et al 2010)• As such there is no specific treatment programmesthat can directly be linked to addressing violent
behaviours different from those for non-violent
child offenders• In Kenya, both institutional and community based
approaches are applied
35

Responding to General /violent
Crimes
1. Institutional responses:• Rehabilitation schools,• Borstal Institution,• Youth Corrective training centres (first timeoffenders)
2. Community• Probation• Community Service• Other forms of supervision36

Responding to sexual violence• Sexual offences Act 2006 (revised) did not envisage
child sexual offences• Sexual offences between children are less punishedas both are deemed in needs of care and protection• Child sexual offenders are accorded both institutionaland community supervision (probation)• A majority are committed to Borstal Institution where
they are provided with rehabilitation and training notdifferent from other categories of offenders• Probation officers are involved in their reintegration
37

Responding to Violent Extremist• Multi disciplinary Approach coordinated by theNational counter-terrorism Centre• Both Probation and Aftercare service and children
Services have developed training manuals forofficers dealing with Violent Extremism• Delivery of education programmes that build
young people's resilience to violent extremist
messaging and fostering a positive sense of identityand belonging• Coordinated supervision and reintegration efforts
for returnees and those exiting penal facilities
38

We now know that:• Successful rehabilitation and reintegration for violent
youths are important because even if they arecommitted to custody, they will return to theircommunities at some point• Once incarcerated, the likelihood of a young offender
re-offending increases.
• The most promising rehabilitation takes place in thecommunity and in the home.
• No one programme will be appropriate for all
delinquent youth
39Strategies for reducing offending
1. Community Reintegration: Involve the community
to assist with rehabilitation / reabsorption. A senseof belonging with positive engagement (CPVs)
2. Decrease punitive sanctions: Studies have shownthat detention and punishment does not reduce
crime nor assist with rehabilitation of a child/youngperson.
3. Develop Alternative pathways toinstitutionalization: Building skills and increasing
capabilities, including critical thinking and access to
education to make informed decisions and build
social capital
40

Strategies for reducing offending
4. Safety: Building protective factors around thechild/young person. This includes access toemployment, family, friends, education and prosocial cognitive development
5. Access to healthcare: Mental health support by
professionals trained in drugs and substancemanagement, trauma, resilience building andprevention/coping strategies
6. Provision of needs Basic needs are met includinghousing, food, water and living conditions
41

Challenges
1. Information sharing and Silo Culture
2. Crime complexities
3. Old child holding facilities
4. Rehabilitation and reintegration weaknesses
5. Slow uptake of Evidence based Assessment
6. Old statutes other than the new Children Act No.
29 of 2022
7. Data management
8. Resource gaps
42

Conclusion• Designing a child justice system that
accommodates best interest of the child is an ideal
many jurisdictions are grappling with.
• Whereas incarceration of young violent offenders isgood for public protect, it is desirable that this isused as a last resort and for the shortest timepossible.
• Holding child offenders accountable and addressing
their offending behaviour very much depend ofability to identify the risk factors and addressing
them in a multi-modelled approach43

•

Arigato Gozaimas•Asante Sana44